Larman v Linzell and others

Land registration – Adverse possession – Reasonable belief – Schedule 6 to Land Registration Act 2002 – Appellant applying for registration of title to small triangle of land claiming adverse possession – First-tier Tribunal directing registrar to cancel application – Appellant appealing – Whether appellant entitled to admit new evidence on appeal to show reasonable belief land belonged to him – Appeal allowed In June 2019, the appellant applied to HM Land Registry for registration of title to a small triangle of land, enclosed within the walls of his garden. He claimed to have been in adverse possession of the land since 1998 when he bought his property. The respondents were the registered proprietors of the disputed triangle. They objected to the appellants’ application, and the dispute was referred to the First-tier Tribunal pursuant to section 77(3) of the Land Registration Act 2002. Title to the triangle was registered, and the respondents required it to be dealt with under paragraph 5 of schedule 6 to the 2002 Act. Therefore, in order to be registered the appellant had to show that one of three conditions applied. He argued that the third condition applied because the triangle lay on the boundary of his property and he had reasonably believed, for at least ten years of the period of adverse possession ending on the date of the application, that the triangle was his. The FTT found that the appellant had been in adverse possession since at least 2003. He had held that reasonable belief until 2007. However, his state of mind changed in that year following an index map search, after which he must have known that title to the triangle was unregistered. Accordingly, the registrar was directed to cancel the application. The appellant appealed. The appellant said he was unaware of the search but subsequently discovered from his solicitor that the purpose of the search was for a home information pack which was required as the appellant was selling his property. The sale did not proceed, and the solicitor said that she believed that the appellant was not aware that the application land fell outside his title. Held: The appeal was allowed. (1) Section 96 of the 2002 Act provided that title to registered land was not extinguished by adverse possession. Schedule 6 to the 2002 Act created a procedure whereby a person in adverse possession might apply for registration as proprietor by adverse possession and might in certain circumstances succeed. Anyone might object to that application; but in addition, the registrar would send notice of the application to the registered proprietor who might respond by requiring the application to be dealt with under paragraph 5 of the schedule, as the respondents did in this case, and so the applicant was entitled to be registered as proprietor of the land if he could show that one of the three conditions in paragraph 5 was met. The appellant’s case on appeal was that the judge’s finding as to what probably happened, based as it was on conjecture, was wrong; he knew nothing about the search, he continued to believe the triangle was his, and that belief continued to be reasonable. (2) There was a mix of evidence and argument on the part of appellant, but so far as his own belief was concerned the appellant was reiterating his evidence to the FTT. The new material was from his former solicitor as to the purpose of the search. If that was true, the appeal had to succeed. It was clear that a solicitor’s knowledge was not imputed to the applicant for title by adverse possession, for the purposes of paragraph 5(4) of schedule 6 to the 2002 Act. The question was whether it was open to the appellant to introduce the solicitor’s evidence on appeal to show that that was true: IAM Group plc v Chowdrey [2012] EWCA Civ 505 considered. The respondents chose not to participate in the appeal and had not challenged the solicitor’s evidence. Nevertheless, the tribunal had to consider whether it was admissible by reference to the criteria in Ladd v Marshall [1954] 1 WLR 1489: The question was whether the evidence could it have been obtained with reasonable diligence at the original hearing, whether it would have had an important influence on the result even if not decisive, and whether it was credible. (3) While as a matter of practicality that would have been possible, the difficulty was that the appellant could not with reasonable diligence have anticipated the need for the evidence. The plan that accompanied the search was not in evidence, and some deduction was needed to reach the conclusion that it must have included the disputed triangle as part of the appellant’s property. The appellant and his representatives did not think that far because they had, understandably, not anticipated the conclusion that the respondents and the judge drew from it. Still less could they have anticipated that the judge would have constructed, on the basis of that search, a narrative about why it was obtained and what the appellant was advised at the time. If that was not what happened it would not have occurred to them before the hearing that they needed to obtain evidence to counter an assertion, not made before the hearing, that that was what happened. So, although in theory the evidence could have been obtained, in fact it could not have been because it was not possible for anyone with reasonable diligence to see the need for it. The new evidence would be admitted on appeal, and the Upper Tribunal (UT) found as a fact on the basis of that evidence, that the 2007 search was not obtained by the solicitor in order to advise the appellant about adverse possession. The search was obtained with a view to selling the property. (4) In response to the application for permission to appeal, the respondents accepted that the appellant continued to believe after 2007 that the disputed triangle was his. There was no evidence that he saw the search. It was obtained for a seller’s pack, not for his use. Whether the conveyancing solicitor spotted the problem was not known, but if she did it was clear from her evidence that she did not tell him about it. Accordingly, the FTT’s decision would be set aside and substituted by the UT’s decision that the appellant was entitled to be registered as proprietor of the disputed triangle. The registrar would be directed to respond to the application for registration as if no objection had been made and on the basis that the appellant had satisfied the condition set out in paragraph 5(4) of schedule 6 to the 2002 Act. The appeal was determined on written representations. Eileen O’Grady, barrister Click here to read a transcript of Larman v Linzell and others