Steven Michael Booler v Sarfraz Yousaf

The parties in this appeal are the registered proprietors of adjoining land fronting Oldgate Lane, Thrybergh, Rotherham, from which each carries on the business of vehicle repairs. By an application dated 22 September 2021, the appellant Mr Booler sought to be registered as the proprietor of a small triangular parcel of land which formed part of the respondent’s, Mr Yousaf, registered title. He did so on the basis that he had been in adverse possession of the parcel for 10 years ending with the date of the application in the mistaken belief that it formed part of his registered title and had used it as part of his forecourt. Accordingly Mr Booler claimed that he fulfilled the requirements of Schedule 6 of the Land Registration Act 2002. Mr Yousaf objected on the basis that Mr Booler had not been in adverse possession for the required 10 years and did not have the mistaken belief which he claimed. In March 2023 the Land Registry referred the dispute to the Property Chamber of the First-Tier Tribunal (FTT) under section 73(7) of the 2002 Act. By a decision dated 1 July 2024, Judge Simon Brilliant in the FTT directed the Land Registry to cancel the application on the basis that Mr Booler’s mistaken belief did not last up until the day he made the application. By a further decision dated 1 August 2024 Judge Brilliant gave permission to appeal to the Upper Tribunal on two grounds. The first was whether the mistaken belief needs to last up until the date of the application. The Supreme Court has now decided that it does not-see Brown v Ridley [2025] UKSC 7. So the appeal turns on the second ground, namely the relevance of leases granted by the then owners of Mr Yousaf’s land, J C Decaux Ltd (JCD) to Mr Booler in 2011 and 2018.

The relevance of those leases is whether they included the disputed land. If either of them did, then Mr Booler’s possession of the disputed land for the duration of the lease was as a tenant and not adverse and his appeal would fail. If neither of those leases included the disputed land, on the findings of Judge Brilliant all the requirements under Schedule 6 of the 2002 Act are made out and his appeal would succeed.

Judge Brilliant found that the leases did not include the disputed land. At the time of the leases, JCD had three advertising hoardings to the front of what is now Mr Yousaf’s land and wanted to retain those. Accordingly these were excluded by the parcels clause in each of the leases as follows:

“All that land to the rear of the Hoardings situate at the south side of Doncaster Road, Thrybergh, registered at the Land Registry under title number SYK455265 as the same is for the purpose of identification only shown red on the plan annexed hereto (but excluding the Hoardings the land on which the Hoardings and the struts, post and equipment belonging thereto are situate and all the land in front of the Hoardings as well as the land at the rear of the Hoardings to a depth of one metre).”

At [67], Judge Brilliant dealt with the plans attached to the 2011 and 2018 leases, which he referred to as the second and third leases:

“The plan which I have found was attached to the second and third leases at electronic page [150]in the bundle has a sliver of demised land to the left of the first of the billboards. At first, I thought that this sliver included some or all of the disputed land. But the photograph at page [195] shoes that the sliver was to the right of the original wall and was the route over the forecourt to the door giving access for JCD’s employees to get to the rear of the billboards.”

The plan referred to appears at page 94 of the appeal bundle. That shows the demised land as part of what is now Mr Yousaf’s land. The red edging of the front boundary has a zig-zag line to exclude the land on which the hoardings stood. Mr Booler’s witness statement dated 8 September 2023, before the FTT, stated was that the plan attached to each of the 2011 and 2018 leases had the same zig-zag line as the front boundary of the demised land. He said he did not recall any Land Registry plan being attached when he signed and believed that the draft attached to his statement is the document he signed when entering into the lease. That document included the plan at page 94. Although faint, it is just about discernible that the plan at page 94 has Mr Booler’s signature on it.

The photograph referred appears at page 114 of the appeal bundle. It shows Mr Booler’s land to the left and Mr Yousaf’s land to the right. Between the two is a line of concrete blocks, leading to a door just to the left of the first of the hoardings. In his witness statement, Mr Booler stated that he placed the line of concrete blocks in 2021, it was as he recalled along the line of an original wall, which he regarded as the boundary wall which was still in place at the time of the 2011 lease and for a “short time after.” He also stated that he believed he dismantled this wall “around 2012.” That wall can also be seen in a photograph taken in 1994 at page 107.

Mr Booler gave evidence before the FTT and called three witnesses who used to work in his business. Judge Brilliant accepted all of their evidence “unconditionally.” Mr Yousaf also gave evidence and called his sister and his tenant as witnesses. Judge Brilliant found that these were doing their best to assist him but as Mr Yousaf purchased his land in March 2021 the relevant issues were outside their knowledge.

Mr Booler appealed the decision of Judge Brilliant on the ground the finding that Mr Booler had not issued his application to the Land Registry within a reasonable time after he ceased to believe that the disputed land was his, was wrong in law. In his respondent’s notice, Mr Yousaf opposed the appeal, despite the Supreme Court decision in Brown v Ridley, on grounds which included that the 2018 lease to Mr Booler had the Land Registry plan attached to it which included the disputed land, so Mr Booler had possession of the disputed land under the lease and not adversely. He also referred to an email received on 30 July 2024 from Elaine Duncan, a property executive of JCD. He dealt with this in more detail in his response dated 9 July 2024 to Mr Booler’s grounds of appeal. By order dated 22 May 2025 the Deputy Chamber President, Martin Rodger KC, directed that the ground of the respondent’s notice was that the appeal should be upheld for different reasons than given by the FTT, namely those reasons set out in Mr Yousaf’s response dated 9 July 2025.

Accordingly, when the appeal came on before me, the central issue that was argued was whether the 2018 lease had the plan at page 94 attached to it, as so excluded the disputed land, as argued by Mr Ferm on behalf Mr Booler, or whether it had the Land Registry Plan attached to it, so as to include the disputed land, as argued by Mr Yousaf. No further oral evidence was given.

Mr Yousaf relied heavily upon the email referred to from Elaine Duncan, which was included in the appeal bundle in a series of screen shots. It includes this passage, which refers to the 2018 lease more accurately as a tenancy at will or T@W:

“However, I am able to confirm that the attached tenancy at will agreement is a complete scan of the original taken, which our solicitors prepared and uploaded as part of the legal pack at the time in order to deduce title for the sale of the above site in the Strettons auction held in February 2021. The original T@W agreement at the time was therefore fully in tact with the land registration plan. The plan is also referred to in the body of the property description on the first page of the T@W document.”

The screen shots also show a copy of the 2018 lease with the Land Registry plan immediately following. Mr Yousaf also handed up to me a hard copy with the same plan.

Mr Ferm makes several points about that the email from Elaine Duncan. It is not in witness form and there is no statement of truth. It appears to be based on hearsay from looking at the legal pack compiled for the auction of Mr Yousaf’s land in 2021 and there is no indication that she had any personal knowledge. It is not known how long she had been employed by JCD or what was the selection process regarding the documents put in the legal pack. It is unlikely Mr Booler would have accepted a plan which included the disputed land when, as found by the FTT, he believed at the time that he owned it. His evidence was that the same plan was used for the 2011 and 2018 leases. If those leases included the disputed land which Mr Booler was in possession of, it would be expected that something along these lines would have been said in writing on behalf of JCD. The auction particulars made clear that plans were for identification purposes only (as indeed were the plans to the 2011 and 2018 leases) and were not intended to show the interest to be sold.

In my judgment the points about lack of reference by JCD to actual possession and the fact that plans in the legal pack were said to be for identification only are not strong points, but the remainder of Mr Ferm’s points are well made. Just why or how Elaine Duncan said that the 2018 lease had the Land Registry plan remains something of a mystery. However, the finding of the FTT that the original wall at the time of the 2011 was along the line shown by the concrete blocks in the photograph was not challenged before me. Neither was Mr Booler’s evidence that the 2011 lease had the plan shown at page 94. It is clear that the maker of that plan had gone to the trouble to identify by the zig-zag boundary where the land on which the hoardings stood was, so as to exclude that land from the demise. The parcels clause in the 2011 and the 2018 lease were identical. In my judgement it is most unlikely in those circumstances that the parties to the 2018 lease intended for some reason to include the disputed land when the 2011 lease did not.

Mr Yousaf dismissed the plan to the 2011 lease as containing a hand written squiggle, by which I took him to mean the zig-zag line to the front boundary, and said that that could have been drawn by anyone. In my judgment that plan cannot be so easily dismissed, and is an important piece of evidence, accepted by Judge Brilliant, which casts substantial doubt on the contents of the email from Elaine Duncan and the copy of the 2018 lease with the Land Registry plan which she produced. In my judgment that is not sufficient to displace the clear evidence of Mr Booler about the plans which was accepted by Judge Brilliant with the support of the photograph at page 114 of the appeal bundle.

Accordingly I allow the appeal and Mr Booler’s original application is therefore made out. I will direct the Land Registry to give effect to it. Mr Fern and Mr Yousaf helpfully indicated at the hearing that they agreed that whoever won the appeal should have his costs. Mr Booler is entitled to have his costs of the FTT hearing and this appeal paid by Mr Yousaf. Mr Ferm invited me to summarily assess the costs in accordance with the schedules filed. In my judgement those costs are reasonable and I assess costs as set out in those schedules, namely £22,107.60 in respect of the costs in the FTT and £16,617.51 in respect of the costs of the appeal to the UTT, making a total of £38,725.11, payable within 14 days.