Beverley Dawn Martin & Anor v Robert Waldemar Sadza & Anor

The matter that has been referred to the Tribunal is the Applicants’ application dated 4^th December 2020 for first registration of land at 72, Langdale Road, Woodley, Stockport SK6 1BH based on adverse possession.

The Applicants are the registered proprietors of 72, Langdale Road, Woodley, registered under title number GM199798, title plan extract below left (“Number 72”). They have lived there since 2009.

The Respondents are the registered proprietors of 70, Langdale Road, Wooodley, registered under title number GM205591, title plan extract above right (“Number 70”). They have lived there since 2021.

The Applicants have applied for first registration of an area of land between their rear garden and the Peak Forest Canal, shown tinted pink and blue on the HM Land Registry Notice Plan, extract below (“the Pink Land” & “the Blue Land”, together “the Land”).

The Respondents do not assert paper title to the Land. There is no evidence as to the identity of the paper title owner. Notice was served on the Canal & River Trust, but it did not object.

The Applicants’ application is an FR1 application for first registration based on adverse possession. The application is for possessory freehold title.

The fact they are applying for a possessory title rather than an absolute title is of some importance on the particular facts of this case.

Pursuant to sections 15 & 17 of the Limitation Act 1980, paper title to land is extinguished after a period of 12 years’ adverse possession. The Applicants aver that they went into adverse possession in 2009. They made their application on 4^th December 2020. Therefore, even taking their case at its highest, they cannot show that the paper title was extinguished at the time the application was made.

I raised this timing issue at the pre-trial review. Mr Dyson for the Applicants produced a separate skeleton argument dealing with the point. Mr Roberts for the Respondents made an oral application for strike out at the start of the final hearing, on the basis that the Applicants had no reasonable prospect of succeeding.

The submission that the Applicants had no reasonable prospect of succeeding was based on the timing issue, with Mr Roberts submitting that the application was defective from the outset. In addition, he also averred that the Respondents have a claim in trespass against the Applicants, due to the alleged moving of the fence between the rear gardens of the properties, which would need to be resolved in the county court, and that there was some sense in the matters being dealt with together.

I refused the application for strike out. Strike out based on no reasonable prospects is discretionary (rule 9(3)(e) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013). The Tribunal must seek to give effect to the overriding objective in exercising its powers. The overriding objective is to deal with cases fairly and justly, which includes dealing with cases proportionately, seeking flexibility, using any special expertise effectively, and avoiding delay (rule 3).

All of the practical considerations were against the strike out application succeeding: the Respondents had not previously taken the point, meaning that the parties had prepared for and were ready for trial, and they had never previously suggested that the matter should be stayed so that it could be dealt with in wider county court proceedings.

Moreover, I considered it was arguable that the application for a possessory, rather than an absolute, title, might succeed. In those circumstances, it would be a far better use of everybody’s time and resources to hear the matter, make findings of fact, and determine whether the application should be given effect to or not.

As it is, the parties did not make any submissions on this particular point. I have considered it further and have determined that, if the Applicants make out their case as to adverse possession, I should direct the Chief Land Registrar to give effect to the application. This is for the following reasons:

The crux of the dispute between the parties is whether the acts carried out by the Applicants on the Land, about which there is little dispute, are sufficient to amount to adverse possession.

The Applicants must demonstrate, on the balance of probabilities, both factual possession of, and an intention to possess, the Land.

Factual possession “signifies an appropriate degree of physical control… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary to prevent intrusion… Everything must depend on the particular circumstance, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so" [Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470-1, cited with approval in J A Pye (Oxford) Ltd v Graham [2003] UKHL 30].

An intention to possess is the intention “to exclude the world at large, including the owner with the paper title… so far as is reasonably practicable and so far as the processes of the law will allow” [Slade J in Powell at 471-2, cited with approval in Pye].

The evidence of factual possession will often be sufficient to demonstrate the intention to possess, but this will not always be so: “It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess” [Lord Hutton in Pye at paragraph 76].

In those cases, an applicant must make it “perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can” [Slade J in Powell at 472]; he “should be required to adduce compelling evidence that he has the requisite [intention to possess]” [at 476].

In the Applicants’ skeleton argument, Mr Dyson sought to argue that acts required to establish factual possession against a party who is not the paper title owner are not as burdensome and that the slightest amount of possession is sufficient, in reliance on the decision of the Privy Council in Wuta-Ofei v Danquah [1961] 1 WLR 1238. That case is not directly on point – it involved a claim in trespass, and turned on whether a party who had been in possession remained in possession or not – and Mr Dyson did not pursue it.

In the Respondents’ skeleton argument, Mr Roberts mentioned the following cases in which adverse possession was not made out: Boosey v Davies (1987) 55 P&CR, in which clearing land of shrubs was not sufficient; Cobham v Frett [2001] 1 WLR 1775, in which the acts were intermittent and not of a continuous and uninterrupted nature; and Neilson v Poole (1969) 20 P&CR 909, in which the disputed land was unmarked by any physical feature. These are of limited use as each case will turn on its own facts.

Much of the factual background is not in dispute, not least because the Respondents do not have any direct knowledge of the Land prior to 2021. The issue is not so much what the Applicants have done on the Land, but whether it amounts to adverse possession.

The Applicants purchased Number 72 in September 2009. Their evidence is that they set about carrying out works to the Pink Land in September 2009 and the Blue Land in October 2009. This included removing the fence at the rear of their garden; clearing overgrown vegetation from the Pink Land; installing a balustrade at the end of the Pink Land; installing decking on the Pink Land (in place from spring 2010, later changed to a patio); installing a gate onto the Blue Land; installing a concrete step at the access point to the Blue Land (this in October 2009); clearing the Blue Land of extremely dense vegetation and rubbish including bricks, scrap metal and lumps of concrete; and installing temporary steps down to the canal. The construction of more permanent steps began in early 2010.

The Applicants’ case is essentially that they have always used the Land as an extension of their garden. This includes using the decking/patio, and, in relation to the Blue Land, carrying out planting, installing solar lights, placing bird boxes/feeders and ornaments, and installing a bench, as well as spending time there.

I note for completeness that the Applicants’ case is supported by the evidence of Francis Fallows, who has lived on the other side of Number 72 at 2 Kendal Gardens throughout the Applicants’ ownership, and Donna Turner, who has overlooked the Land from the other side of the canal since 2019. They both effectively confirm that the Land has been used as an extension of the Applicants’ garden.

There are not many historic photographs of the Land. The following are the most pertinent.

In terms of access onto the Blue Land, the concrete step and gate were installed to the right-hand side of the Pink Land (when facing the canal). The position of the original gate can be seen in the following photographs.

In 2021/22, the Applicants replaced the fence to the right of their garden/the Pink Land (when facing the canal) and the decking was changed to a patio. A more recent photograph shows the gate after the fence was replaced. The Applicants aver that this shows the concrete step originally placed in October 2009, and that the original gate was in the same position.

The issues between the parties began in 2022. The dispute seems to stem from the fact the Respondents are unhappy that the Applicants are accessing land directly behind their garden. They appear to be of the view that they should be able use the part of the canal bank behind their property, that is, the area if the fence line between the Numbers 70 & 72 were to be extended down to the canal. This is illustrated by a plan they annotated as below.

It seems likely the Respondents were unaware of the Applicants’ access to the Land prior to their purchase – a photograph taken in March 2021, when they were viewing Number 70, illustrates what they would have seen at the bottom of Number 70’s garden (extract below).

In part of their written case, they aver that no gate is evident in this photograph, but I am satisfied that a gate did exist there. There is clear evidence of work on and use of the Blue Land going back to 2009 – the Applicants must have had some way of accessing it, and the balustrade means that it cannot have been from the edge of the Pink Land nearest the canal. The position of the gate can be seen on the photographs taken from Number 72 above.

At this point, it is useful to note that, in or around April 2022, the Respondents moved back their rear fence: the gate still opens, but the Applicants no longer have access to the area to the right of the gate/concrete step as they step out onto the Blue Land. Even if the Applicants were in adverse possession of that area, they are not any more. References to the Land/the Blue Land should be read as excluding that part that is now fenced off by Number 70’s new rear fence.

The Respondents aver that, when the fence was replaced, its position was moved onto Number 70 so that Number 72’s garden “fans out” more. This again appears to be linked to the idea that they should be able to use the part of the canal bank behind their property, with the suggestion being that the fence has been shifted so that more of the canal bank falls on Number 72’s side of the hypothetical line down to the canal.

The question of the boundary between Numbers 70 & 72 is not the subject of these proceedings. Mr Roberts nonetheless argued that it was relevant because it means the garden “fans out”. I do not accept this. It has never been part of the Applicants’ case that the boundaries of the Land follow the fence lines down to the canal. Rather, they aver that the boundaries of the Land have always been wider than end of Number 72’s garden/the Pink Land. I do not see how the position of the garden fence has any relevance to this.

Since the dispute arose, there has been what might be described as an ongoing contest for control of the upper part of the Blue Land behind Number 70:

The Respondents do not dispute the case of adverse possession in relation to the Pink Land. They do however contest adverse possession of the Blue Land, primarily on the basis that it does not have proper boundaries, but also on the basis that other people have access/are not excluded. They say the Applicants’ more recent acts – planting the hedging and erecting a fence – have been done to remedy this but have come too late.

The Applicants aver that the Blue Land was cleared and had visible boundaries by June 2010. Their evidence is that they chose not to erect fences, but did use logs to mark the edge of the area. This was because no-one else was accessing or was likely to access the Land, the canal bank either side being overgrown, and also because they did not want to exclude wildlife. They say the boundaries follow natural lines down to trees on the edge of the canal, as they have roughly indicated on the photograph below.

In her oral evidence, the First Applicant described the logs as “dead hedging”, a term I adopt. She said there was dense vegetation either side of the Blue Land that no-one could get through, and that the Blue Land was kept trimmed back. She noted it would be structurally hard to erect fences due to the tree roots, and that they wanted something in keeping with the area. She explained that the boundaries of the Blue Land were not straight due to the lie of the land.

The First Applicant was asked if the purpose of the fencing was to stop the Respondents going on to the Blue Land. She replied that it was to protect themselves and to prevent damage.

The Applicants also rely on Ms Fallows’ written evidence, which was unchallenged, which states that, “Before the Applicants moved in, I had never seen anyone else on the canal bank at the rear of their garden. It appeared inaccessible due to being heavily overgrown and the steepness of the slope”.

The Respondents’ written evidence was that “My wife and I as well as the previous owners have been able to enjoy access to the canal”. However, in his oral evidence, the First Respondent accepted that he had no knowledge that his predecessors used the area. He also accepted that he had only seen the Applicants on the Blue Land.

In relation to the borders, the First Respondent’s oral evidence was that the dead hedging was not in place when he moved in. When was asked about a photograph from 2024 (extract below), he said that it went from 1 branch to 6 or 7, but that when he moved there was nothing there. Both the Respondents said in oral evidence that the Blue Land was wild when they arrived.

Dead hedging can be seen in the vicinity of the borders of the Blue Land on the photographs from 2011 and 2015 above. It seems to me that the 2011 photograph in particular shows a clear demarcation between the cleared area in the centre of the photograph and the vegetation that still exists either side.

Dead hedging and/or a demarcation between cleared land and overgrown land is also visible on several photographs from the years before the dispute.

HM Land Registry conducted a survey in September 2022. The photographs from that show similar features:

The report states that there is no defined boundary down either side of the Blue Land and that access is open from the surrounding woodland. It also states that the Blue Land is exclusively occupied by Number 72.

There is little to be gained from the photographs since then as so much has been happening on the Land. I do finally note, however, that, on the site visit, I observed the existence of logs as alleged by the Applicants to the lower part of the Blue Land, and noted that some appeared to have been there for some time as they had become embedded in the soil.

Having considered all of the evidence, I make the following findings of fact:

The Applicants must show factual possession, that is, an appropriate degree of physical control; and an intention to possess, that is, an intention to exclude the world at large so far as is reasonably practicable.

The nature of the land is an important consideration. Here, prior to the Applicants’ acts, the Land was overgrown woodland. The works carried out by the Applicants significantly changed the character of the Land, going far beyond, for example, clearing shrubs.

Moreover, the canal bank was not obviously accessible or used by anyone. This is a factor in terms of what steps the Applicants might be expected to take to exclude the world at large.

The Respondents’ best point is in relation to the demarcation of the Land. There is no requirement that the Land be fenced or otherwise enclosed in a way that completely prevents access, and I do not consider that the lack of fencing is, in these particular circumstances, enough to defeat the claim. However, there must be something to mark the boundary.

On these facts, I am satisfied that the boundary of the Land is marked by a physical feature, namely the dead hedging. Indeed, even without the dead hedging, I consider there is enough of a distinction in the character of the Land compared to the surrounding canal bank to constitute a physical demarcation. This follows the tree line down to the trees at each side of the Land on the edge of the canal as is approximately shown on the Edges of the Blue Land photograph above.

Insofar as the Respondents argue that they were able to access the Land and so the Applicants cannot show exclusive possession or exclusion, I accept Mr Dyson’s submission that, as soon as there was an issue with access, the Applicants took steps to assert control, and that this is what an occupying owner would do.

In closing, Mr Roberts suggested that the Applicant’s acts in erecting the steps do not necessarily show an intention to possess but may just have been creating a point of access to the canal. Whilst there is evidence of the Applicants using the steps to access the canal (there is a photograph of the Second Respondent on the water), it cannot sensibly be said that the Applicants were only trying to create a means of access to the canal – there is evidence of them using the steps and the platform as a garden area in their own right, not to mention the use of the parts of the Land that fall either side.

I am satisfied that the Applicants can show factual possession and an intention to possess the Land going back to at least June 2010.

For the reasons given above, I am satisfied that the Applicants should be registered with possessory freehold title to the Land. I will direct the Chief Land Registrar to give effect to the Applicants’ application dated 4^th December 2020 for first registration based on adverse possession as if the objection of the Respondents had not been made.

I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that the Respondents pay the Applicants’ costs, unless there is some good reason to make a different order. I know of no reason why it would not be just to make the usual order in this case.

My preliminary view is therefore that the Respondents should pay the Applicants’ costs of the proceedings (from the date the matter was referred, 23^rd February 2024), to be summarily assessed if not agreed.

Any application for costs should be sent to the Tribunal and the other side by 5pm on 6^th August 2025, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate.