Alan Samuel Traynor & Anor v Charu Investments Limited & Ors

Key words: Adverse possession- Application under LRA 2002 Schedule 6 – Whether Applicants in possession for 10 years – Whether Property subject to a trust within Schedule 6 para 12 Cases referred to: Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 J A Pye (Oxford Ltd) v Graham [2003] AC 419

1. Mr and Mrs Traynor have applied to HM Land Registry under Schedule 6 of the Land Registration Act 2002 to be registered with possessory title to an area of land adjoining their garden (“the Land”). Charu Investments Ltd (“the Company”) objected to the application. No notice was given requiring the application to be dealt with under paragraph 5 of Schedule 6. The matter was referred to the Tribunal for determination. The Tribunal joined Frederick Gerald Westcott and Louisa Elizabeth Jane Westcott as a parties but they have played no part in the proceedings.

2. The Land is part of a larger area registered under title number DN79258. Frederick Gerald Westcott and Mabel Ruby Westcott were registered as proprietors on 1 st November 1979. Mabel Ruby Westcott died on 27 th November 2001. Mr and Mrs Traynor made their application by form ADV1 dated 11 th April 2022. At that date title number DN79258 had been advertised for sale by auction by Charles Darrow Auctions. Mr and Mrs Traynor wrote to the auctioneers on 17 th April 2022 stating that they had made the application in respect of the Land. DN79258 was sold on 28 th April 2022 to the Company. The land was sold expressly subject to the adverse possession application. A transfer of DN79258 to the Company was executed by Frederick Gerald Westcott and Louisa Elizabeth Jane Westcott on 27 th May 2022.

3. I visited the Land on the afternoon of the day before the hearing. I was accompanied by Mr and Mrs Traynor and Mr Sharma, a director and shareholder of the Company, and his wife. The Land is a wooded area , which slopes down from the rear of Mr and Mrs Traynor’s garden. A short flight of steps leads to a made-up zig-zag path that crosses the Land from one side to another. A large number of ferns have been planted on the Land. It is possible to see from the positions of the plants that they have been planted and have not simply grown up naturally. A number of the trees show signs of having been pollarded. Towards the bottom of the slope and marking the boundary of the area claimed by Mr and Mrs Traynor there is a barrier or fence made by laying dead branches between upright pieces of wood put into the ground. Beyond the barrier there is a path running between different areas of land within DN79258. Set into the slope and within the area enclosed by the barrier is a substantial wooden stake on to which has been pinned a laminated signed, reading “ Private Land No Public Right of Way”

4. The Company’s case is twofold. It says that Mr and Mrs Traynor were not in possession of the Land for a period of 10 years or more prior to the date of their application. It also says that Mr and Mrs Traynor cannot succeed because of the provisions of paragraph 12 of Schedule 6.

5. Paragraph 12 of Schedule 6 provides “A person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust, unless the interest of each of the beneficiaries in the estate is an interest in possession”. “An interest in possession” is an interest under which a person has an immediate right to the income of the property or to use and enjoy that property. It does not require that the beneficiary be in physical possession of the property, as Mr Sharma thought to be the case.

6. The Land was held on trust up to the date of the transfer (and since the signing of the transfer has been held by the registered proprietor on trust for the Company). The land in title DN79258 was formerly in the ownership of JF and RG Westcott (Developments) Ltd. This appears from an entry in the charges register referring to a transfer dated 3 rd October 1978 of the land in the title by JF and RG Westcott (Developments) Ltd to John Frederick Westcott and Frederick Gerald Westcott. Frederick Gerald Westcott made a statement of truth in support of an application for registration of land to the south of 2 Barningham Gardens Plymouth PL6 6HJ based upon lost or destroyed deeds. The copy of the statement in the bundle is undated. At box 15 of the statement, Mr Westcott said “The land in [title number DN79258] was transferred by [JF and RG Westcott (Developments) Ltd.] to my uncle John Frederick Westcott and myself by deed of transfer dated 3 rd October 1978. Following the death of my uncle in 1979 his interest in the land in title number DN79258 passed to my Aunt, Mabel Ruby Westcott. When my late aunt passed away on 27 November 2001 the beneficial interest in my late Aunt’s estate was shared equally between myself and Mrs Jeanne Louise Henwood (“Mrs Henwood”). Mrs Henwood was the joint Executor of my late Aunt’s Estate together with Mr Reginald John Billing (“Mr Billing”). When Mrs Henwood passed away it was agreed that the Land would be transferred to myself and Mr Billing to be held on trust for myself and the late Mrs Henwood’s Estate. Our beneficial interests were stated to be 75% for myself and 25% for the Estate of the late Mrs Henwood”.

7. Mr Beach gave evidence confirming the facts set out in his Statement of Case. His evidence as to what had been done on the Land was as follows (1) A barrier had been created with natural materials to prevent access to the Land. (2) The Land was subsequently partially cleared with a path and steps from Mr and Mrs Traynor’s property provided. (3) The natural barrier with a laminated sign indicating “Private Land No Public Right of Way” had been maintained since 2009. (4) “Garden elements” had been introduced, augmented and enhanced. (5) Tree surgeons had been engaged every two years since Mr and Mrs Traynor “took ownership” to pollard the large number of trees and the branches were used to maintain and augment the barrier. He said that the Land had been exclusively possessed by himself and his wife since 2009 with the natural barrier and signage clearly displayed.

8. Mr Traynor was cross-examined by Mr Sharma for the Company. Mr Sharma did not put it to Mr Traynor that he had not erected the barrier or had not maintained the barrier and a laminated sign since 2009 or had not partially cleared the Land or constructed steps and a path or retained tree surgeons to pollard trees on the Land or that anyone other than the Traynors had made any use of the Land since 2009.

9. Mr and Mrs Traynor served witness statements from a neighbour, Dr Helen Goodall; another neighbour, Dr Hocking; and friends, Mr Matthews and Mrs Peters. They all stated that Mr and Mrs Traynor had constructed the barrier in 2008 or 2009, erected the laminated sign in 2008 or 2009 and had developed the land by constructing the steps and paths and planting an fernery. These witnesses were not called to give oral evidence so their evidence was not tested by cross-examination. I must therefore consider carefully what weight to give to the contents of the statements.

10. Mr Sharma made a witness statement and gave evidence, confirming its contents. The only thing Mr Sharma said in his witness statement about the use of the Land was at paragraph 13 where he stated “From my knowledge of the Property it is not fenced in its entirety which enables visitors to access the property with ease”.

11. During his closing submissions Mr Sharma said that he had visited the Land at the time of the purchase by the Company and that at that time, the barrier was less substantial than it appeared at the site visit. This assertion was not in the Company’s Statement of Case or in Mr Sharma’s witness statement and had not been put to Mr Traynor in cross-examination. I considered that it would be unjust to allow it in as late evidence.

12. I find that Mr and Mrs Traynor erected in 2009 a barrier sufficient to prevent people from walking onto the Land from the path below it. From that time, access to the Land could be gained only from Mr and Mrs Traynor’s garden. I also find that Mr and Mrs Traynor erected the laminated sign in 2009. They have maintained the barrier and sign since then. I also find that at about the time of erecting the barrier, Mr and Mrs Traynor constructed the steps and path. Thereafter, on a biennial basis they had trees on the Land pollarded. They also planted ferns on the Land.

13. The question to be answered when considering whether a person occupying land is “in adverse possession” is “…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…Beyond that…the words possess and dispossess are to be given their ordinary meaning.” (per Lord Browne-Wilkinson in J A Pye (Oxford Ltd) v Graham [2003] AC 419 at paragraphs 36, 37).

14. Legal possession is comprised of two elements: (1) A sufficient degree of physical custody and control (“factual possession”); and (2) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” ( ibid paragraph 40).

15. Factual possession has been described as follows: “It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. 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 …Everything must depend on the particular circumstances, 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.” per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham .

16. What is required for the intention to possess is the intention to exclude the whole world, including the true owner of the paper title, from the land so far as is reasonably practicable and so far as the processes of the law will allow – see per Slade J. in Powell v. McFarlane above. The intention must not only be the subjective intention of the squatter but the squatter must also show by his outward conduct that he has such an intention. The intention must be manifested by unequivocal action – see Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87. The use of the land must be such that the true owner, if he took the trouble to be aware of what was happening on his land, would know that the squatter was in possession “It would plainly be unjust for the paper owner to be deprived of his land where the claimant had not by his conduct made clear to the world including the paper owner, if present at the land, for the requisite period that he was intending to possess the land” – per Peter Gibson LJ in Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87.

17. Lord Hutton said in Pye v. Graham at para 80 “Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. 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. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.

18. I find that Mr and Mrs Traynor have since 2009 had a sufficient degree of exclusive physical control of the Land. They have been using the Land as an occupying owner might be expected to have dealt with it and no-one else has done so. They have had factual possession of the Land. I also find that their actions on the Land were unequivocal in showing that Mr and Mrs Traynor intended to possess the Land. They were sufficient to demonstrate their intention to possess the Land to the exclusion of all others. If the true owner had taken the trouble to look at the Land he would have known that someone had taken possession.

19. The only evidence as to the trusts on which the Land was held by Mr Frederick Westcott is his statement of truth in form ST1. That statement does not reveal whether there was at any time a beneficiary whose interest was not in possession. If the Company is to rely on Schedule 6 paragraph 12 it must be established that during the period of possession relied on by the Applicants, there was a beneficiary of a trust of the Land whose interest was not in possession. That has not been established Conclusions

20. Mr and Mrs Traynor were in possession of the Land for a period of more than 10 years prior to the date of their application. Though the Land was held on trust during that period, it has not been established that it was a trust falling within the provisions of paragraph 12 of Schedule 6. I shall direct the Chief Land Registrar to give effect to the application as if the objection of the Company had not been made.

21. The Tribunal has power to make an order for costs in a land registration case. Practice Direction 9 of the Property Chamber Land Registration Division Practice Directions provides that where the Tribunal makes an order for costs, it will usually order the unsuccessful party to pay the costs of the successful party but it may make a different order. My preliminary view is that it would be just and fair to order the Company to pay Mr and Mrs Traynor’s costs of the proceedings. As Mr and Mrs Traynor are litigants in person, those costs will be limited to £19 per hour for time reasonably and proportionately spent on the proceedings since the date of reference of the matter to the Tribunal and out of pocket expenses reasonably and proportionately incurred. If any party wishes to submit that some different order should be made as to costs then they should file with the Tribunal and serve on the other party written submissions by 5pm on 15 th September 2025. Thereafter, the Tribunal will give further directions. BY ORDER OF THE TRIBUNAL Judge Michael Michell DATED this 29 th August 2025