Martin John Brown & Anor v Paul Bernard Fleuriot & Anor

1. The matter that has been referred to the Tribunal is the Applicants’ ADV1 application to be registered as proprietor of land currently within the title of the Respondents pursuant to Schedule 6 of the Land Registration Act 2002 (“ the Act ”).

2. The Applicants are the registered proprietors of 2 Ellers Bank, Hayfield, High Peak SK22 2LR, registered under title number DY530517, extract from title plan below (“Number 2”). The Applicants purchased Number 2 in December 2018.

3. The Respondents are the registered proprietors of 4 Ellers Bank, Hayfield, High Peak, SK22 2LR, registered under title number DY481229, extract from title plan below (“Number 4”). The Respondents purchased Number 4 in April 2022. Title Plans 2 & 4

4. Ellers Bank is a row of four cottages, with Number 4 to the far left when facing the frontages. Behind the cottages is a row of outbuildings. The application relates to an outbuilding located behind the cottage at Number 4 (“the Shed”), shown edged green on Number 4’s title plan above and tinted blue on the Notice Plan extract below. Notice Plan

5. The Applicants’ case is essentially that the Number 2 has used the Shed since at least 1984 in such a way as to amount to adverse possession. The Respondents deny that the Applicants can show factual possession and/or an intention to possess, and also argue that any use was with consent.

6. Summarised like so, the case is a fairly straightforward one, turning on factual disputes and arguments as to whether acts are sufficient to amount to adverse possession. However, there are a number of technical legal points overlaying this, some of which were raised with the parties at the pre-trial review and hearing, and some of which have come to light during my consideration of the matter.

7. It is convenient to deal with the more straightforward aspects of the case first, essentially determining the dispute as the parties saw it, which I will refer to as “simple” adverse possession, before returning to the technical points later. “Simple” adverse possession Evidence

8. By way of a preliminary observation, I note that neither party has much direct knowledge of the Shed, both having come to their respective properties relatively recently (2018 and 2022 respectively). Many of the matters raised in cross-examination were more legal argument than factual evidence. For this reason, their evidence does not feature much in this analysis. Mr Burgess

9. The Applicants’ case largely rests on the evidence of Mr Ivan Burgess, whose parents owned Number 2 and who lived there himself for many years.

10. There are two procedural matters to mention in relation to Mr Burgess. Firstly, the Respondents objected to a later version of a witness statement that was not originally included in the bundle. However, (a) the email correspondence suggested it had been served on time; (b) it was very similar to a previous witness statement; and (c) the Applicants had provided a copy of the later version separately ahead of the pre-trial review, meaning that the Respondents had sufficient time to consider the changes, even if they had not received it previously.

11. Second, the Respondents were concerned about the circumstances around Mr Burgess being called to give oral evidence. At pre-trial review, I asked the parties who would be attending to give evidence at the remote hearing, to ensure that appropriate arrangements were in place to allow the hearing to run smoothly. It seemed that the Applicants had not planned for their witnesses to attend. I explained that a witness who provides a witness statement is ordinarily expected to give oral evidence, and that, if they do not, less weight will be attached to their evidence, and the parties were given a few days to confirm who would be attending so that the other side had fair warning and time to prepare accordingly. The Applicants confirmed that Mr Burgess would attend, although their other witnesses, the Yardleys, could not. The Respondents interpreted this as providing unfair assistance to the Applicants. I disagree – it was exercising proper case management and explaining rules of evidence and procedure to the (unrepresented) parties.

12. Before coming to Mr Burgess’ evidence of use of the Shed, it is helpful to consider the comment in his witness statement that “ we understood the shed belonged to [Number 2], as shown on the deeds of the house ”. He says his parents lived at Number 2 from 1957, renting it from his mother’s brother Mr Stafford, before purchasing it in 1984. As I understand it, his reference to the deeds is a reference to that 1984 conveyance.

13. An extract from the plan to the conveyance is below. The conveyance conveys the land edged red known as 2 Ellerbank Valley Road (Number 2) save and except the water closet marked brown. It also conveys the land coloured green and the sites coloured blue (described as “ store or shed (and WC) ”) “ for all the estate and interest of the Vendors therein”. The area marked brown corresponds with the dent in the eastern boundary of Number 2’s registered title, and the sites coloured blue correspond with an outbuilding to the rear of 3 Ellers Bank and also the Shed.

14. The parties appreciate that this means that, effectively, the vendors could not show good paper title to the green or blue land, including the Shed, but were conveying whatever interest they had in it. There is a contemporaneous statutory declaration from Mr Stafford which talks about “ undisturbed possession and enjoyment ” of some land by his tenants at Number 2 since 1968 (when he became owner). The wording used and the colouring on the plan means it is not entirely clear to what land he is referring, but one interpretation is that he is talking about possession of the green and blue land (adopting the colours on the plan above). In any event, the inference from the wording of the conveyance is that the Staffords claimed to have some interest in the green and blue land, and it is likely that the statutory declaration was intended to support that.

15. I turn to consider Mr Burgess’ evidence of the use of the Shed. His evidence is that he lived at Number 2 from 1957 (he was born in 1954) until he was 27, and then lived locally, visiting his mother regularly (three times a week), until he moved to the northeast in 2000. He says he continued visiting until 2018 (when it was sold to the Applicants), including helping with the gardening. He says both the Shed and the WC were emptied before the sale, and that it was only on the sale that he became aware there was any issue.

16. He says that, when he was a small boy, the Shed was used as a coal store, and that later it was used for storage of bikes, gardening tools, painting equipment, stepladders, and other tools. He says it was used on a daily basis as a coal store, but less regularly – perhaps once a week or fortnight – after that. He says there were gardening tools in there up until 2018. For completeness, I note that, in relation to the other outbuilding, behind Number 3, he says this was a WC at the time he left in the early 1980s that was later used for storage.

17. He was asked about maintenance of the Shed. He remembered it being creosoted at least twice, his father painting it green, and an Ian Burgess (no relation) carrying out some repairs on a paid basis. He accepted it was never in very good order.

18. He was asked about the Shed being locked, or identified as part of Number 2. He said it was locked for a while, but did not give specifics. He said he did not remember a number on the WC but thinks there was one on the Shed. He could not remember whether they put the number on – he said it was not him personally, but might have been his brother.

19. More generally, he explained that the outbuildings had changed over the years, for example, steps that are now located on Number 4 used to be a coal store. I note in passing that one of the outbuildings behind Number 3 has recently been removed and is now a stairway. He also talked about neighbours “swapping” outbuildings, which explains why one of the outbuildings directly behind the house at Number 2 does not in fact form part of its title. When he was asked about the arrangements for using the Shed, he said they never needed permission, “ they were our sheds, simple as ”. The Yardleys

20. Edward & Caroline Yardley provided a witness statement on behalf of the Applicants. There were similar admissibility issues which I dismissed for the same reasons given in respect of Mr Burgess. The Yardleys were, however, unable to attend. This means that their statement carries less weight as the Respondents have not had the opportunity to challenge them about it.

21. The Yardleys have lived at 2 Rock Hall, which is up the hill from Ellers Bank since 1986. Their statement explains that they were friends with both the Leadbetters, previous owners of Number 4, and the Burgesses at Number 2. They particularly mention visiting Janet Leadbetter. They say that, when they asked in which outbuilding the stepladder was kept, she told them the Shed belonged to Number 2. They also say they saw the Burgesses and more recently the Applicants using the Shed, noting that they can see the rear of the cottages from the path to their property. Other evidence

22. It is clear from the written evidence that the Applicants tried to register the Shed when they purchased Number 2, but that this was knocked back as the Shed was already registered as part of Number 4. It is also clear that the Applicants took steps to try and remedy this, including making an application for adverse possession in 2019 that was cancelled, and possibly also another application in 2020, as referenced in their former solicitors’ letter. The Applicants say that the issues were due to their former solicitors and/or HM Land Registry not dealing with matters properly. It is not necessary to rehearse all the details of this; I need only say that I am satisfied the Applicants’ position – that they are entitled to adverse possession of the Shed – has been consistent throughout, and that there has not been any judicial determination of this yet.

23. The First Applicant gave oral evidence. He was asked if there were numbers on the Shed and the WC when he bought Number 2. He said there were, that they looked like they had been there a long time, and that he thought Mr Burgess must have been mistaken in his evidence about this. He accepted however that he could not say they were there before 2018. He also could not say if the Shed was locked in 2018.

24. When asked if he used the Shed before the Respondents bought Number 4, he said it was used when they were renovating, but after that less frequently. When it was put to him that all that was in the Shed in 2022 was, essentially, rubbish, he replied “ why would I leave anything of value when you said you would change the lock ” (or words to that effect).

25. It is not in dispute that the Respondents were aware the Applicants claimed the Shed belonged to them before they completed their purchase of Number 4. The First Respondent’s statement explains that, on a viewing, he noticed the Shed had a “2” sign in it, as well as a lock, and asked Mr Pluen (one of the vendors) about it. Mr Pluen’s reply was that he had been told by Number 2 the Shed belonged to them. It was also raised with the vendors’ solicitors, who stated in an email, “ There have been no issues in relation to No 2 using the outbuilding. They barely use it, other than to store a few things ”. The Applicants themselves emailed the Respondents’ solicitors, and mentioned the deeds and a stalled adverse possession claim. The Respondents’ evidence is that they were advised that the legal title shows the outhouse within the boundaries and no rights are reserved for no. 2 to use it.

26. I note for completeness that the Respondents place much reliance on their vendors’ Property Information Form, which says nothing about the Shed. However, I cannot see how this is relevant given the Respondents were aware of the Applicants’ claim as set out above.

27. The First Respondent gave evidence that he had never seen anyone use the path to 2 Rock Hall from which it is possible to see across the rear of the cottages. There is no evidence from any of the Respondents’ predecessors in title (save the email referred to above).

28. It is not in dispute that the Respondents removed the lock, sign, and the Applicants’ possessions from the Shed on or around 30 th May 2022, and have locked and used the Shed themselves since. Findings of fact

29. During their closing submissions, I asked the Respondents whether they were arguing that Mr Burgess was mistaken in his evidence and/or whether they were arguing that his acts were insufficient to amount to adverse possession. The First Respondent replied that it was a little bit of the first but more of the second, a sensible approach.

30. The main difficulty the Respondents have in challenging Mr Burgess’ evidence is that they do not have any of their own to rebut it. The First Respondent suggested that his evidence was not reliable as he could not remember the details of when he was contacted by the Applicants, but it seems to me there is no real comparison between recalling that and remembering what he says he is a whole pattern of behaviour over many years. I found him to be a straightforward witness who was considered in his answers and avoided exaggeration.

31. Moreover, his evidence is consistent with the overall picture presented by the supporting documents – the inference from the 1984 conveyance is that the Staffords claimed to have an interest in the Shed, and the fact there is a dent in Number 2’s title is consistent with the outbuildings not necessarily corresponding to the cottages (the Respondents suggest that Number 2 using the Shed is surprising, but the same could be said of a third party holding title to the outbuilding at Number 2, which is evidently the case).

32. It is also consistent with the Yardleys, whose evidence would not be very persuasive on its own, but does add weight here. Insofar as there is a dispute about the Yardleys using the path from which the rear of the cottages can be seen, I note that their statement refers to visiting Mrs Leadbetter at Number 4, which suggests that there would have been opportunities for them to see the use of the Shed over and above seeing it a distance from the path.

33. For these reasons, I accept Mr Burgess’ evidence as to the use of the Shed in its entirety.

34. There are the slightly different questions of whether the Shed was locked and/or whether it had a “2” sign. I cannot be satisfied that the Shed was either locked or had a sign for any significant period prior to the Applicants purchasing Number 2 in 2018 given the lack of specifics provided by Mr Burgess. That is not to say that these were not in place when the Applicants purchased Number 2, just that the Applicants cannot establish when they were installed.

35. There is also the issue of use of the Shed by the Applicants. Again, the Respondents are in difficulty challenging the Applicants’ evidence of use prior to their purchase. As with Mr Burgess, there was no sign of exaggeration – the First Applicant was frank in saying that the Shed was used more during the renovations and less later. In any event, it is not in dispute that the Applicants locked the Shed and ensured that it was identified as belonging to Number 2 with a “2” sign. I also accept the Applicants’ evidence of use of the Shed from 2018-2022.

36. Before turning to whether this evidence is sufficient to remonstrate adverse possession, I deal with one final factual point. This is whether Number 2’s use of the Shed was with permission. This is for the Respondents to prove on the balance of probability.

37. The Respondents do not have any direct evidence of permission being given. Rather, as I understand it, they rely on two arguments. First, they say that Mr Burgess’ evidence of the use of the outbuildings suggests that permission had been given, and that he would not have known about it because of his young age. Second, they say that the vendors’ solicitors’ comment that “ There have been no issues in relation to No 2 using the outbuilding ” suggests that the use was not contested and that permission had been given.

38. It seems to me that what the Respondents are really saying is that I should infer permission was given because use was not contested. But there is a crucial difference between not contesting something and positively permitting something – all adverse possession essentially rests on conduct that is not contested. I am not satisfied that there is evidence that use was with permission. Adverse possession

39. The parties both understood that adverse possession involves factual possession and an intention to possess.

40. 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… 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 ].

41. 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 ].

42. The Respondents made a number of points contesting adverse possession, which I take in no particular order.

43. The Respondents placed much reliance on the condition of the Shed, arguing that an occupying owner would have been expected to maintain it. Firstly, I note for completeness that there is some evidence of maintenance. Second, whilst it is not said that it was kept in very good order, it was evidently in a condition where it could be used to keep items such as bikes and tools. It seems to me that this is how an occupying owner might have been expected to deal with it. The fact the Respondents would have kept it in a better condition, which seems to be behind this argument, does not necessarily mean that what Number 2 did was not enough.

44. This overlaps with a host of other points made by the Respondents that are nor far off amounting to submissions that they are “more deserving” of the Shed. They mention that Number 2 is a holiday home and refer to the lack of community spirit when two of the four cottages are holiday lets. They mention that they need the Shed for storage. They mention a lack of privacy given the Shed is opposite their kitchen window. In a similar vein, the Applicants submit that, if they do not have an interest in the Shed and the WC, they will be left without any outbuilding, which would be unfair. None of these points is relevant to my consideration of whether the Applicants can establish adverse possession or not.

45. The Respondents argue that the acts relied upon are minimal. I have found that the Shed was used to store bikes, gardening tools, painting equipment, stepladders, and other tools from the 1980s to 2018. This is, in my judgment, considerably more than minimal. The fact it was not maintained in very good order and/or that it was not accessed all the time does not change that. As above, this is how an occupying owner might have been expected to deal with it.

46. The Respondents argue that the Applicants cannot show an appropriate degree of physical control. It is right to note that I have not found that the Shed was locked or identified with a “2” sign until 2018. However, these are not indispensable. The Shed is a small self-contained building distinct from the rest of Number 4. It has been used for storage of a variety of items, some large, such as bikes and stepladders. In that time, it has not been used by anybody else. In the circumstances, I consider this to be an appropriate degree of physical control.

47. The Respondents argue that Number 2 cannot show an intention to possess because of the delay in trying to register the Shed. I am not sure I follow this – there was no reason for Number 2 to take any steps in relation to the Shed until the sale in 2018, which led to its first registration and the discovery of the problems, and it is clear that the Applicants did then immediately act to try and resolve the situation (albeit it did not go smoothly). In any event, it is not necessary to act quickly to register land in order to show an intention to possess.

48. Finally, I note a pertinent point that was perhaps raised obliquely by the Respondents when they submitted that the Applicants could show use only. This is whether Number 2’s use might be attributed to a right to use the Shed for storage, rather than showing an intention to possess. I am satisfied in the circumstances of this case that the use was of such an extent to effectively exclude the world at large from the Shed, meaning that the Applicants can demonstrate an intention to possess.

49. From 2018 onwards, I am satisfied that the locking and identification of the Shed shows both factual possession and an intention to possess.

50. For these reasons, I am satisfied that the Applicants can demonstrate adverse possession of the Shed from the 1980s to 2022. Legal complexities

50. I turn now to consider the legal complexities overlaying this. Schedule 6

51. The Applicants’ application is made under Schedule 6 to the Act , that is, it is an application for adverse possession of registered land. The Applicants must demonstrate that they and their predecessors had been in adverse possession of the Shed for the period of ten years ending on the date of the application, or within 6 months of ceasing to be in adverse possession of the Shed “ because of eviction by the registered proprietor ” (paragraph 1(2)).

52. There is an issue as to what I should take as being the date of the application. According to HM Land Registry’s Case Summary, the Applicants’ original ADV1 application form is dated 12 th July 2022, but the application is recorded it as having been made on 21 st March 2024 (this is ignoring any earlier applications that were made, which I assume were cancelled; certainly, they have not been referred to the Tribunal). If the later date is correct, the application will fail, as the Applicants accept they were not in possession of the Shed from May 2022 onwards.

53. The issue was raised with the parties at the pre-trial review, after which the parties were provided with a list of sources to consider, including references to Rules 12, 16, & 20 of the Land Registration Rules 2003 and HM Land Registry Practice Guides 49 & 50. The parties were also directed to provide copies of any further correspondence from HM Land Registry, as that might have a bearing on the issue, with their relevance and admissibility to be discussed at the start of the hearing.

54. Before the final hearing, the Applicants provided a small bundle of HM Land Registry correspondence. They said they did not particularly want to rely on any of it, but had provided it in compliance with the direction. The Respondents objected to its introduction. I was satisfied that the documents were relevant, in that they might assist me in determining the reason for the difference in dates, and that the Respondents had had sufficient time to consider them.

55. The correspondence confirms the application was first received on 15 th July 2022. However, by a letter dated 12 th August 2023, HM Land Registry wrote to the Applicants stating, “ Unfortunately, we cannot at this time accept your application and I have made arrangements for it to be cancelled. I understand you will be disappointed, but at this time your application is fundamentally flawed, however, you can relodge your application once the defects below are remedied ” . The inference to be drawn from the remainder of the letter is that the application was defective because the evidence in support only went back to 2018.

56. The Applicants provided further evidence. HM Land Registry wrote a detailed letter on 26 th October 2023, stating that it was not satisfied the Applicants met the essential criteria for their application, giving four reasons why. The final reason was that “ Your statement refers to having been prevented from accessing the property since May 2022. As such, I do not see how you can demonstrate continued possession of the property ”.

57. The Applicants responded to the reasons. In relation to the latter, they argued that they had made their first application before May 2022 (this is I believe a reference to the application in 2019), and that they disputed the Respondents’ act of changing the lock but were fearful of repercussions if they replaced it. They also make references to various pieces of advice they received that I do not repeat here.

58. HM Land Registry wrote on 6 th January 2024, confirming that “ the concerns raised in my colleague’s letter are still pertinent ” and noting “ the circumstances of your occupation and how that was brought to an end ”. It asked for details of “ exactly how the shed has been occupied both by yourself and by the previous occupier ”. Ultimately, the date given to the application by HM Land Registry was 21 st March 2024.

59. It is helpful at this point to consider the provisions of the Land Registration Rules 2003 relating to applications to HM Land Registry.

60. Rule 20 provides that an entry, removal or alteration of the register pursuant to an application has effect from the time of the making of the application.

61. Rule 12(1) provides that, “ The registrar must keep a record (known as the day list) showing the date and time at which every pending application under ”. The day list provides an important function in recording the priority of applications. Moreover, as official searches give notice of any entries on the day list of any relevant pending applications affecting the title (see HMLR Practice Guide 12), “… the Act or these rules was made… the day list plays an essential part in protecting persons contemplating acquiring interests in the registered land from doing so in ignorance of applications for registration which would take effect in priority to that person’s interest ” [Rimer LJ in Chief Land Registrar v Franks & others [2011] EWCA Civ 772 , paragraph 30].

62. Rule 16 deals with applications that are not in order, making provision for the registrar to either (a) raise requisitions; or (b) reject or later cancel an application, if it appears to be substantially defective or if there is a failure to comply with any requisition.

63. Here, what appears to have happened is that the Applicants’ July 2022 ADV1 application was cancelled as HM Land Registry considered it to be defective. However, on 21 st March 2024, it did enter an application on the day list – based on that ADV1 form but also taking into account the evidence and representations that had been provided since.

64. As explained above, the day list is hugely important in terms of the system of land registration and priorities. I am not willing or able to go behind that and take the date of the application as being 12 th (when it was dated) or 15 th (when it was received by HM Land Registry) July 2022. Should the Applicants disagree with the approach taken by HM Land Registry, that is a matter for them to pursue separately.

65. The Applicants also argue that, essentially, the Respondents changing the locks should not amount to an eviction as they always contested the Respondents’ actions. I do not accept that the fact they contested the eviction means it did not amount to an eviction. It brought the Applicants’ possession to an end. Schedule 6 allows for this type of situation by allowing an applicant 6 months’ grace after an eviction to make an application. Here, that is exactly what the Applicants did, albeit they cannot rely on it because it was cancelled.

66. For these reasons, I am not satisfied that the Applicants can bring themselves within Schedule 6. Schedule 12

67. At the pre-trial review, and knowing that it had always been part of the Applicants’ case that the adverse possession went back to at least the 1980s, I raised the possibility that the Applicants might be able to bring themselves within the transitional provisions of the Act . I explained that it is possible to rely in the “ old law ” if they could show a continuous period of 12 years’ adverse possession prior to 13 th October 2003. I proposed dealing with the application as having been made under the transitional provisions so that the dispute between the parties could be resolved without the need for a further application to be made.

68. The sources provided afterwards included references to HM Land Registry Practice Guides 4 & 5, Limitation Act 1980 sections 15 & 17, Land Registration Act 1925 section 75 , and Land Registration Act 2002 Schedule 12 paragraph 18.

69. At the final hearing, the Respondents did not seek to dissuade me from dealing with the matter under the transitional provisions.

70. However, on reviewing the case after the hearing, I have come to the conclusion that I was mistaken in my view that the transitional provisions might apply. This is because I overlooked the fact that Number 4 (which includes the Shed) was not registered until 21 st January 2014 (when it was purchased by Mr Pluen & Ms Rodriguez, the Respondents’ predecessors). The transitional provisions only apply to land that was registered as at 13 th October 2003.

71. For these reasons, I am not satisfied that the Applicants can bring themselves within Schedule 12. A third option

72. There is a third option that would allow the Applicants to be registered as proprietors of the Shed. It was not raised at the pre-trial review or the hearing, although it is covered in HM Land Registry’s Practice Guide 4. It is, I am afraid, somewhat technical.

73. It runs as follows. I have found that Number 2 was in adverse possession of the Shed from the 1980s. By the time of registration of Number 4 on 21 st January 2014, the paper title owner’s title to the Shed had been extinguished by 12 years’ adverse possession under the Limitation Act 1980 , and so they were never entitled to be registered as proprietor. Their registration as proprietor of the Shed was a mistake.

74. It is possible to apply for alteration of the register to correct a mistake to remove the Shed from Number 4’s title and for first registration of the Shed on the basis of the adverse possession.

75. Alteration is governed by Schedule 4 of the Act . Schedule 4 deals with alteration differently depending on whether it is properly described as alteration or rectification. Rectification is a type of alteration which involves the correction of a mistake and prejudicially affects the title of a registered proprietor. Although it is a subset of alteration, it is common to refer to them as alternatives.

76. It might be thought that the removal of land from a registered title quite obviously prejudicially affects the title of a registered proprietor. However, this is not necessarily the case. The title may always have been subject to another interest.

77. In relation to the first registration itself, section 11 of the Act provides that first registration of a property is subject to certain unregistered interests, including interests belonging to a person in actual occupation, and interests acquired under the Limitation Act 1980 of which the proprietor has notice. As I am satisfied that Number 2 was in adverse possession of the Shed as at 21 st January 2014, I am satisfied that first registration was subject to Number 2’s interest.

78. There is then the transfer to the Respondents in 2022 to consider. At that point, Number 2’s interest was not registered. That interest will only bind the Respondents if it is an overriding interest (see section 29 of the Act ). Schedule 3 lists unregistered interests which override registered dispositions. This includes an interest belonging at the time to a person in actual occupation, subject to a number of exceptions. I am satisfied that the Applicants were in actual occupation at the time of the transfer.

79. I mention a couple of the exceptions here only to confirm that I do not consider that they apply. This is not a case where an inquiry was made of the person and they failed to disclose their interest, or an interest that would not have been obvious on a reasonable careful inspection and of which the Respondents did not have actual knowledge. The evidence is quite the opposite, that the Respondents were well aware of the Applicants’ interest.

80. I am therefore satisfied that the transfer to the Respondents was also subject to Number 2’s interest.

81. The upshot of this is that the alteration does not prejudicially affect Number 4’s title – it was always subject to Number 2’s interest. This is a case of simple alteration, rather than rectification.

82. Pursuant to Schedule 4 paragraph 1, there is a discretion whether to alter the register for the purpose of correcting a mistake. Paragraph 6(3) provides that, in rectification cases, if there is the power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration. The same approach should be applied where the alteration does not amount to rectification (see Derbyshire County Council v Fallon ). [2007] EWHC 1326 (Ch)

83. Guidance as to the meaning of exceptional circumstances was given in Paton and another v Todd [2012] EWHC 1248 (Ch) . There are two questions to consider: firstly, are there exceptional circumstances; and secondly, do those exceptional circumstances justify not making the alteration. Exceptional has its ordinary meaning, that is to say, out of the ordinary course, or unusual.

84. I cannot for my part see that there is anything that would amount to exceptional circumstances here. I am however aware that the parties have not had the chance to address this, or indeed any of the analysis set out in the section. Right of way

85. The Respondents’ skeleton argument and the joint list of issues both reference the question of whether the Applicants have a right of way to the Shed. This is not something that is mentioned in the application, although I can understand why the parties might treat it as part and parcel of the same dispute.

86. I explained at the pre-trial review that, although there has not been an application for a right of way, it is something the Tribunal might deal with under Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. This provides that a direction to the registrar to give effect to or cancel an application may include “ a condition that a specified entry be made on the register of any title affected ”.

87. However, as noted by the Respondents, the Applicants have to cross Number 3 to get to Number 4. The registered proprietors of Number 3 are not parties to these proceedings. There is some dispute as to what position they take in respect of the WC (which is within their title) and/or any right of way.

88. Bearing in mind the involvement of a third party, it seems to me that it is better to leave the question of rights of way to another day. I do however make clear, in case it is not obvious, that I am satisfied Number 2 has been using the Shed by crossing over Number 3 onto Number 4. Proposed way forward

89. I am conscious that the parties are understandably anxious for an end to this matter. It seems to me that it is far better to try and achieve some finality in these proceedings without the need for further applications.

90. What I propose to do by way of a final order is to: (a) record that I have treated the application as one for alteration (to remove the Shed from Number 4) and first registration (to register it in the names of the Applicants); (b) direct the Chief Land Registrar to remove the Shed from Number 4 and to register the Applicants as first proprietors; (c) direct specifically that the Applicants be registered with absolute title (by way of a condition that a specified entry be made under Rule 40). This mirrors the outcome that would have been achieved had there not been the problems with relying on Schedules 6 & 12 as explained above.

91. However, I am acutely aware that this is all new to the parties and that they have not had the chance to consider it or make any submissions. I will therefore allow the parties 28 days to provide any written representations before making a final order. This is not an opportunity to re-argue the points on "simple" adverse possession, but rather to address what I have described as the third option and my proposed final order. It is open to the parties to respond sooner to confirm that they have no objections to my approach.

92. Finally, I note that the final order to the Chief Land Registrar will be to give effect to the Applicants’ application, albeit treated as an application for alteration and first registration, as if the Respondents’ objection had not been made. This is the standard wording that is used, to allow for the possibility that HM Land Registry has another reason not to give effect to the application. There is nothing that can be done about this; it is an eventuality that will have to be addressed if it arises. Dated this Friday 16 th January 2026 Laura D’Cruz By Order of The Tribunal