William Charles Keates v Nina Durham

KEYWORDS – adverse possession – transitional provisions - overriding interests – actual occupation – shared ownership Cases referred to: Re Pavlou [1993] 1 WLR 1046

1. Cedar Street accommodates a row of terraced houses with gardens to the rear in a residential suburb in the north of Derby. 64 and 65 Cedar Street share a boundary that runs from the front to the rear of their properties and gardens. There is an alleyway to the right of number 65, which runs to the rear of that house and leads to a path that cuts across the front of the garden and leads to the rear of the house at number 64, but stops when it hits the start of a concrete path that stretches to the rear of the garden. This path is between the gardens of the two properties and runs to the rear of those gardens.

2. Mr Keats purchased 64 Cedar Street in May 1988. He says he bought it for his mother, who never moved in. Neither did he. After a period of about 6 months refurbishment, he let it out. He has let it out ever since. He says part of that refurbishment included putting a fence up along the right hand side of the concrete path described above. He said he thought that path was part of his garden and so he considered he was entitled to fence it off from the garden at number 65.

3. Ever since he claims to have adversely possessed part of his neighbour’s garden. On 13 th February 2023, he made an application under paragraph 18 of Schedule 12 to the Land Registration Act 2002 to exercise what he claims is his right to be registered as proprietor of that strip.

4. Ms Durham purchased 65 Cedar Street in April 2018. She objected to Mr Keats’ application. Her primary objection is that she disputes that the fence was erected in 1988. She points to the total lack of any corroborative evidence from Mr Keats as to the presence of the fence; no receipts and no photographs. Mr Keats also had no other supporting witness as to the erection of the fence in 1988. He said that was all unsurprising as this was a rental property and the costs were minimal. He did say that he had receipts, but had not brought them with him.

5. Ms Durham’s difficulty is that she only purchased her property in 2018 and so cannot give any direct evidence as to whether there was a fence in place from 1988. She accepts that there was one when she moved in.

6. I consider that the fence has been in situ since 1988 and that it is sufficient to have enclosed the whole of the path off from use by no65. Mr Keats certainly put up the fence at one point, and I see no reason to disbelieve him when he says that was in 1988. It follows that subject to the points made below, that would be sufficient for Mr Keats to succeed on his claim. Permission

7. In his closing submissions, Mr Keats made reference to an alternative argument in the event that his primary claim failed. He said that in fact the entire path was shared. He pointed to the reference in the registered titles of an assent dated 31 st January 1967. That said that the adjoining walls between the properties were party walls and that ‘ all paths passages … and all other easements or quasi-easements … used or enjoyed in common by or in connection with the property hereby assured and the adjoining and adjacent properties … shall be so used or enjoyed and shall forever hereafter be upheld and maintained as joint or party property.. ’

8. Reliance was placed on that to assert that in fact the path was joint property and that if he lost, Ms Durham could not fence off the part on her side, as it was all jointly owned.

9. If Mr Keats was right in his interpretation of the assent, then it would follow that there was joint ownership of the path that he said he had acquired by way of adverse possession. However, if he partly owned it, it was not clear that he could adversely possess it given that he would have and did have permission to use it. Further it would seem that to the extent that there was some form of joint ownership, they held the path on trust for themselves.

10. I do not consider it is appropriate to only consider the meaning of the assent if I found against Mr Keats on his primary argument. It seems to me that either this is a relevant matter or not, Mr Keats cannot rely on it solely as an alternative case. I therefore queried how Mr Keats could be said to have adversely possessed land that was in joint ownership.

11. In written submissions after the hearing, Mr Keats relied on Re Pavlou [1993] 1 WLR 1046 for the proposition that it was possible to adversely possess in these circumstances, through the ouster of the other owner. That was a case on tenants in common and equitable accounting when one co-owner excluded the other. It was not a case on adverse possession by one joint owner against the other and I derive no assistance form it.

12. In my view, I consider the assent did mean that the path was a party path and owned by both. That is the clear meaning of the assent and accords with the physical layout of the gardens; being open to each other which a path that runs down the middle of the two plots. It follows that Mr Keats has always had a right to be on the path and I am not satisfied that in those circumstances it can be said that he has adversely possessed it. Further, to the extent that the path was in fact in joint ownership, Mr Keats is not able to take advantage of his position as a joint owner and claim adverse possession. I therefore do not consider that he has made out his case.

13. I therefore consider that the path is in joint ownership, with the result that neither party could fence it off to the exclusion of the other. Overriding Interest

14. If I am wrong on my approach to joint ownership, there was another aspect of the application that needed to be explored given the long history of this matter.

15. This is an application under the transitional provisions of the Land Registration Act 2002 as Mr Keats claims to have established over 12 years adverse possession prior to the coming into force of that Act in October 2003. If that is correct then the following consequences flow.

16. At the end of the 12 years adverse possession prior to October 2003, Ms Durham’s predecessor in title would have held the path on trust for Mr Keats (see s.75 of the Land Registration Act 1925 ). From October 2003, when the 2002 Act came into force, as his legal title had not been registered to that part, the trust was revoked and instead he had a right to be registered as proprietor of that part under paragraph 18(1) of Schedule 12 of that Act . That right was an overriding interest for a period of 3 years; i.e. to October 2006, under paragraph 11 of Schedule 12 of the 2002 Act . After that date, his interest was susceptible to being overreached by a sale of no65. In other words, that interest could only survive a sale of no65, which included part of the path, if it was protected. Protection against future sales can be achieved either by registering the interest or if the interest was an overriding interest under Schedule 3 to the 2002 Act .

17. His interest was not registered. The question is whether it was an overriding interest.

18. In this case, the relevant provision that could apply is paragraph 2 of Schedule 3 of the 2002 Act . That provides that an interest will be protected if there is: a. actual occupation of the land by the person claiming that interest, unless: i. The interest was not obvious on a reasonably careful inspection of the land; and ii. the person who bought the title was not aware of the interest.

19. Mr Keats is not, and never has been in actual occupation. He has always let his property. He therefore falls at the first hurdle. This is another reason why his application fails. Conclusion

20. I will direct the Registrar to cancel the original application dated 20 th May 2022.

21. If either party wishes to make an application for costs they should do so within 14 days of receipt of this decision and further directions will then be given. By Order of the Tribunal Judge Dovar Dated this 28 th November 2025