Shirley Ann Thorpe v Harald Nobert Frank Lesley Frank

Hearing date: 24 January 2019

Approved Judgment

(A) Introduction

This is the appeal of Mrs Shirley Thorpe from the Order of 7 November 2017 of the Upper Tribunal (Tax and Chancery Chamber) (“UT”) (Upper Tribunal Judge Elizabeth Cooke). By that order Judge Cooke allowed the appeal of the Respondents, Mr Harald Frank and Mrs Lesley Frank from the Order of the First-tier Tribunal (“FTT”) (Tribunal Judge Hugh Jackson) of 23 October 2016.

As a result of Mr and Mrs Franks' successful appeal, the UT ordered that Mrs Thorpe's then registered title to property and land adjacent to 9, Harcourt Close, Bishopsthorpe, York (“No. 9”) under title number NYK421739 be altered by removing from it land registered under that title and adding the same to the registered title of Mr and Mrs Frank to the property and land known as 8, Harcourt, Close (“No. 8”) registered under title number NYK129935. The order directed that title number NYK421739 be closed. I was at one stage concerned as to whether the order of the UT had been inaccurately drawn up. The point was raised in the initial draft of this judgment circulated to the parties. It seems likely, following an explanation from counsel, that my concern was unjustified. However, I would ask counsel to liaise with one another to ensure that this court can make an order on the appeal that gives correct directions to the Land Registry.

(B) Background Facts

No. 8 and No. 9 are neighbouring semi-detached bungalow properties in Harcourt Close, which is part of an area of residential properties built in the mid-1960s. Mrs Thorpe's principal property, No. 9, obtained first registration on 3 December 2014 under title number NYK419739.

Mrs Thorpe acquired No. 9 on 17 January 1984 from a Mrs Marjory Asher; Mrs Thorpe had previously lived at No. 9 as Mrs Asher's tenant. Mr and Mrs Frank became registered owners of No. 8 on 28 May 2012, having obtained the property by gift from Mrs Frank's mother, Mrs Marjorie Sutherland, who had resided at No. 8 since about 1995.

The situation of the two properties can be seen by reference to the title plan of No. 8, a copy of which is annexed to this judgment. As shown, the land comprised in the title of No. 8 was, as Mr Denehan for Mr and Mrs Frank conveniently called it, “jug shaped”. The title of No.9 lies to the south-west of No. 8, below it on the plan and to the right of the “jug spout” of No. 9's registered title.

The dispute arose from Mrs Thorpe's claim to have acquired, by adverse possession, part of the land included in the title to No. 9. The relevant land is a triangular plot forming the “jug spout” (or part of it) to which I have referred. The disputed plot is usefully illustrated by a sketch plan (not to scale) which was attached to the judgment of the UT. I annex a copy of that plan to this judgment also. It is to be noted that this plan has certain flaws. The boundary to the left should be shown as a continuation to the top of the plan of the line C-D. If that line is so continued, the garage shown as “Number 9 garage” would be correctly described as “Number 7 garage” and there should be shown to the right of it on the plan a further garage attached to that one, which is “Number 8 garage”. That is, there is a pair of connected garages on that spot, serving No. 7 and No. 8 respectively. As can be seen from the title plan already annexed, a garage serving No. 9 is to the rear of that house and somewhat to the south of it. However, the garages have little, if any relevance to the present dispute.

Both the Tribunals and this court have been assisted by a number of photographs which are uncontroversial. I append one of these to this judgment for illustrative purposes only. On that photograph, the two garages, serving No. 7 and No. 8, can be seen. No. 8 and No. 9 are to the right of the picture. The disputed land is about half the area laid out in paved squares in the foreground. It is that half which would lie to the left of an imaginary line running from the corner apex nearest the photographer and continuing to the point where the fence meets the two properties. That part of the paved land to the right of the imaginary line is within the paper title of No. 9. The part of the paved area to the left of that imaginary line is the disputed land. I will return to the fence, shown on the picture, later in this judgment. The paved area, with its brick edged sides and similarly edged squares, has been known in the proceedings as “the apron”.

Mrs Thorpe applied to the Land Registry for registration as freehold proprietor of the disputed part of the apron, as part of her title to No. 9, on the basis of a title acquired by adverse possession. The statement submitted by Mrs Thorpe in support of that application included the following:

“The area in front of my house was paved with concrete paving slabs by the previous owner, a Mrs Marjory Asher, in a rectangular shape, believing the land to be hers. It had a small garden in the centre. The property was then sold to me in this state on 17 January 1984 and no mention was made to me of any other access across the land, nor that the land belonged to the title of another. Accordingly, in 1985, I decided to have the area repaved and this paving kept to the existing area, at least where it adjoins the neighbour's gravelled area perpendicular to the front of my house. I note that the neighbour never questioned this then or until now, and would have had to have made reference to it at the time of first registration of their own property, but clearly did not. In the intervening time, no person or vehicle ever crossed the land in question from 1985 to date, during which time I have parked my car in the space. Given the space that the neighbour at 8 Harcourt Close has to access garages and the property, this is not surprising. … There was, prior to 1984, a concrete “lip” around the paved area which clearly demarcated the area adversely possessed, such that it is “obvious” to a third party that the area forms the area attached to 9 and further that it is clearly not a roadway access to any other property. The new paving again makes it clear that the land is being dealt with as my own and not for some other benefit or access route.”

The application was referred to the FTT by the Registry and Mr and Mrs Frank became respondents to it.

(C) In the First-tier Tribunal

In evidence before the FTT, Mrs Thorpe supplemented her written statement provided to the Registry. She said that when she was a tenant on No. 9 and up to the time of her purchase from Mrs Asher, there was an edged stone kerb around the apron area with different tiles or flagstones laid over that area. There was a flower bed in the middle. She decided to repave the apron and her son, Mr Steven Thorpe, did the necessary work in about 1986. She said that it was those tiles/flags and bricks that have remained on the apron ever since and which can now be seen on the photographs.

Mr Thorpe gave evidence to the FTT that he was a builder by trade. He said that when his mother bought No. 9 the apron area was paved with 2 foot square flags, edged with a brick set, and that the whole area was raised by some 2 ¹/₂ inches from the surrounding surfaces. There was a small area of open soil in the middle in which a bush had been planted. He said his mother power washed these flags and tended the central planted area. However, he said, his mother wanted the apron area levelled down, removing the 2 ¹/₂ inch lip, to avoid damaging her car tyres. Accordingly, he had gone with his mother to a builders' merchant where they had chosen buff coloured paving flags, 600 mm. square in dimension, and burnt brown brick sets to form the edging and to break up the paving appearance. They had purchased “vehicle-grade” paving so that it would be suitable for vehicles to drive over. He then removed the old flags, reduced the level of the area by digging it out and restored it with hard-core. He laid the new flags and set the brick edging. He said that the work was done in 1986. It became common ground that, whenever the work was done, it took about two weeks to complete.

The major factual dispute before the FTT was as to whether Mr Thorpe's evidence, as to the date on which he did this work, was correct. He said it was done in 1986. The Franks and their witnesses said that the work was done much later in 2009. The FTT accepted the evidence of Mrs Thorpe and of Mr Steven Thorpe on this point and found that the work had been done in 1986. The FTT also found that there had indeed been some form of paving covering the apron in the period before 1986 and that the earlier paving was bordered with a concrete lip. Those points were not contested on the appeal to the UT and they have not been contested in this court. It is not necessary to say more about the evidence given on those matters, which is set out very fully in the FTT decision.

That decision contains some material as to the use of the apron after the new paving was laid. Mr Thorpe said that his mother had regularly parked upon it and had regularly power-washed it, wearing out a number of washers in the process. She said that she also regularly cleared the area of litter and weeded it. The Franks said that they had regularly driven over it on visits to Mrs Sutherland. They said that in 2012, shortly...