England and Wales Land Registry Adjudicator

 

REF/2014/0492

 

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

Angela Phillips

 

APPLICANT(S)

 

and

 

Edward Thomas Wilkes, Thomas Wilkes, Abigail Margaret Hillier and Tim Jobson

 

RESPONDENT(S)

 

 

Property Address: Land On The North Side Of 12 Top Street, Appleby Magna

Title Number: LT457807

 

 

 

 

Sitting at: Birmingham Employment Tribunal

On: Wednesday 22 July 2015

Before: Principal Judge Elizabeth Cooke

 

 

Applicant Representation:               Messrs  Crane and Walton Solicitors LLP

Respondent Representation:            Josiah Hincks Solicitors

 

 

DECISION

 

 

Introduction

1.       Walker Hall Farm in Top Street, Appleby Magna, was built in the 17^th or 18^th century, and was an impressive structure. At some stage in the 1920s or 1930s it was split into a number of smaller dwellings, including number 12 which fronts on to the street, and number 8 which lies behind it and does not have a street door. This case is about the ownership of a little room – I will call it the Blue Room because it has been coloured blue in some of the plans. It is on the second floor of the building, accessible from within number 12 but within the boundary of number 8 as it was shown on the pre-registration deeds and now on the Land Registry plans for both houses. The owners of number 8 say that it belongs to them. It is not disputed that they had the paper title before registration and are now the registered proprietors of the Blue Room. The reference to this Tribunal arose because Angela Phillips, the registered proprietor of number 12, applied to register title to the Blue Room by virtue of adverse possession. She wanted the title sorted out because she wanted to sell the house. The owners of number 8 object because they say that the Blue Room forms part of their title; accordingly I have to decide to whom the room belongs.

2.       The Blue Room is accessible from number 12 and not from number 8, and has not been accessible from number 8 since before 1959 when number 8 was conveyed to Mr Thomas Wilkes. There is ample evidence that the Blue Room was used by Angela Phillips’ father, Albert Phillips, and his family from at least 1965 onwards. Miss Phillips says that he was in adverse possession of it. The Respondents say that he was in possession of it by permission of Mr Thomas Wilkes, given orally in 1969 or 1970 or possibly 1972. It is not in dispute that if Mr Phillips was given permission to occupy the Blue Room, at a point before he had been in possession of it for 12 years, then he cannot have acquired title by adverse possession.

3.       Accordingly this case turns on facts alone. There is no issue about the quality of possession, or of intention, needed to constitute adverse possession, and no argument about such matters  was needed. I am grateful to Ms Ubhi for the Applicant and Mr Small for the Respondents for their helpful advocacy at the hearing on 22 July 2015.

4.       I begin the judgment with a plan of the Blue Room and a description of physical features that are not in dispute; I set out a brief chronology; I then summarise the evidence given and after a brief discussion I give my conclusions.

 

A plan and a description

5.       Here is a plan of the Blue Room and the structures around it.

6.       The description I now give of the Blue Room and the features on the plan is not in dispute. Most of what I go on to say here is visible either from within the Blue Room or from inside number 8. I am grateful to the Applicant and to the Respondents for letting me visit their properties on 21 July, the day before the hearing.

7.       The north wall of the Blue Room contains a dormer window. Wall A, opposite the window, is made of lath and plaster. Miss Phillips has produced a surveyor’s report, by Mr Underwood; he says the construction of the wall indicates that it was made no later than the 1930s, and that is not now in dispute. There is a hole in Wall A, marked B on the plan, which was made by the respondents a year ago in order to see what the wall was made of. Walls D and E are made of brick, and go across the width of the house. At point F in Wall E and at point C in wall D there is a brick arch.

8.       The arch in Wall E is not visible from inside the Blue Room but on the number 8 side, in Abigail’s room, the plaster has been pulled away to reveal it; the archway is bricked up, and you can see daylight through gaps in the brickwork. The door in wall D is set in a wooden arched frame, and it is understood that there is a brick arch above, like the one in wall F; the doorway is about 5’6” tall.

9.       The Blue Room is reached in number 12 by a steep staircase, at the top of which is a bedroom on the right and the Blue Room on the left. In number 8 the second storey is approached by stairs parallel to the lath and plaster wall. Ahead of you at the top of the stairs is a thin partition creating a little cupboard (inside which the hole at point B was made). There is a landing, parallel with and between the stairs and wall A, which leads to the door of Abigail’s bedroom. The doors to Abigail’s bedroom, to the Blue Room and to the room opposite the Blue Room all have bakelite handles reminiscent of the 1950s.

 

Chronology

10.   Here is a chronology of relevant events.

	Number 8	Number 12
1953		Bought by Albert Phillips
1958	Bought by Mr Thomas Wilkes’ mother
1959	Deed of gift conveying the property to Mr Thomas Wilkes
1965		Angela Phillips born
1984		Angela Phillips leaves
2003	Property transferred to first, third and fourth Respondents
2007		Albert Phillips transfers the property to Angela Phillips by deed of gift
2010		Albert Phillips dies

 

11.   Title to number 8 is registered at HM Land Registry with title number LT 315531; the registered proprietors are his son Edward Wilkes, his daughter Abigail Hillier, and Timothy Jobson; there is a restriction on the title preventing the registration of any disposition without the consent of Mr Thomas Wilkes, the second respondent, of 8 Top Street or , after his death, of Audrey Margaret Wilkes, also of 8 Top Street; Mr Thomas Wilkes explained in his statement of case that a settlement was made in 2003 transferring the property to the three registered proprietors, but that he and his wife still live there.

12.   Title to number 12 was registered in 2007, title number LT 403719, following the deed of gift to Angela Phillips.

 

The evidence

13.   I now summarise the evidence given by Angela Phillips and the two witnesses she called, followed by the evidence given by three of the four respondents.

 

Evidence for the Applicant

14.   Angela Phillips gave evidence in a witness statement and then at the hearing. Except where I indicate otherwise I accept her evidence as true. I think that she gave evidence honestly according to her own recollection; but there are areas where I think her memory and her understanding of what happened are inaccurate, and are coloured by the hostility between neighbours in recent years. The crucial events relating to the Blue Room took place before she was old enough to remember clearly or indeed to have any knowledge of them.

15.   Angela Phillips explained that she is the daughter of Albert Phillips, who owned number 12 from 1953. He had a first wife, Lilian Phillips; they had three daughters. By 1961 they were separated, and a maintenance order made against Albert Phillips shows that the eldest daughter, Sandra, was born in 1950. Miss Phillips did not know she had sisters until she was 14 and has never met two of them.

16.   Albert had a new partner, Jean Gray, by 1962 or 1963; she moved into number 12 in 1965, before Angela was born. Albert and Jean married in 1972 and separated in 1984 or 1985.

17.   For as long as she can remember Angela had the Blue Room as her bedroom. Her memories go back to when she was about 4, so she thinks she was in there from 1969 at the latest. Her brother Edward, who sadly passed away 10 years ago, occupied the other second floor room. She does not recall sharing a bedroom with him but I accept her mother’s evidence (see later) that she did so initially. She recalls chatting to Abigail Wilkes through the brick wall E on the plan, when she was older. The room has been largely unused since she moved out in 1984, although she slept their occasionally when she stayed, and her brother and his family used the two second storey rooms for a year or so around 1987.

18.   Angela has no knowledge of any agreement made between her father and Mr Thomas Wilkes about the use of the Blue Room. Miss Phillips says that her father trusted her in financial matters and she was responsible for making out his cheques in his later years. She does not think that he would fail to mention an agreement about the Blue Room. Miss Phillips says that her parents and Mr and Mrs Thomas Wilkes were not on good terms; her mother had quarrelled with Mrs Towers,  and she says she often heard her parents whispering to each other that Mr Wilkes was sly and devious and could not be trusted. I do not accept Angela’s evidence on this point; her mother’s recollection is very different. Mr Thomas Wilkes did not attend Mr Phillips’ funeral; but that is explained by their later quarrel involving number 10, according to Mr Thomas Wilkes, and does not shed any light on their earlier relationship.

19.   Angela recalls Edward Wilkes taking her indoors, when she was about 10, to show her the cabin bed that had been made for him in the bathroom, directly under the Blue Room on the first floor of number 8; we heard more about why that was from Thomas and Edward Wilkes. Angela recalls that the stairs to the loft in number 8 – that is, the second floor – was not a proper staircase but “a set of rudimentary steps”. Mr Thomas Wilkes says that the staircase was original. I accept his evidence that it was a proper staircase, in preference to Angela’s childhood memory.

20.   These properties did not have bathrooms originally. We heard later that number 8 lost a first floor bedroom when the bathroom was put in. Miss Phillips told us that number 12 only ever had one bedroom on the first floor, which was partitioned to form a bathroom, and I accept her evidence. In other words, I reject the suggestion that number 12 was originally three-bedroomed by virtue of having two rooms on the first floor. Miss Phillips regards this as important because, she says, her father and his first wife would have needed a three-bedroomed house for their three children; she conjectures that they must have used the Blue Room. But there is no evidence for this.

21.   Miss Phillips says that her father took out a loan in 1969 for central heating to the whole property. Surely, she says, he would not have included the Blue Room if it was not his? I do not find this significant. It is implausible that he would not have heated the bedroom his little daughter was to sleep in, regardless of ownership.

22.   Miss Phillips says that her father had the dormer window in the Blue Room replaced three times; she does not have invoices because paperwork was lost in a flood. Work done by Care and Repair in 2009 and 2010 did not include the dormer window because it had already been replaced. As we shall see, Mr Thomas Wilkes gave a more detailed account of the replacement of the dormer window and I accept his account, including his evidence that Mr Phillips did not pay for the replacement window on the occasion that he describes.

23.   Miss Phillips’ witness refers to descriptions of number 12 in a publication “Images of England” and in an extract from Heritage Gateway. The trial bundle included copies of both descriptions; I find them too unclear to be of any assistance and in any event they say nothing about the ownership of the Blue Room even if they did establish (and I do not think they do) that it was accessed and used by number 12.

24.   Miss Phillips points out that the Valuation Office Agency – responsible for council tax valuation - in 2014 stated that number 12 is a three-bedroomed house and, so far as they were aware, had been since the 1950s. The VOA attached a survey conducted in 1956, which states – by a number in a box – that the second storey of the house had two bedrooms.

25.   Accordingly Miss Phillips says that her father paid council tax on his house on the basis that it had three bedrooms, and Mr Thomas Wilkes paid council tax on the basis that the Blue Room did not belong. Both are in Band A, and she says that that had number 8 been a four-bedroomed property it would have been in Band B. This is conjecture. Mr Thomas Wilkes accounted for the Council Tax banding on the basis that both properties were regarded as terraced, and that there was no internal inspection. I accept his evidence. We do not know whether the use of the Blue Room made any difference to the rating valuation before the introduction of council tax; but even if it did, that does not assist the Tribunal. If the Blue Room was owned by number 8 and used by number 12, either owner might have paid rates consistently with that. The views of the VOA in 2014 do not make any difference to the issue I have to decide, nor do the measurements by the VOA made in 2014. I return to the 1956 valuation later.

26.   Miss Phillips obtained a report from a Mr Underwood of CA Underwood Ltd in July 2014 about the construction of the Blue Room. The contents of that report are not now disputed, and are reflected in the description I gave of the room. It was pointed out in the hearing that Miss Phillips’ quotation from that report in her witness statement is inaccurate. She quotes him as saying

“The staircase leads to a small landing with bedrooms on either side. The layout lent itself to Number 12 owning the room in dispute”.

27.   That second sentence does not appear in the written report. This was pointed out in cross-examination and was not explained by Miss Phillips. Perhaps this was what the architect said to her. I do not think it was a deliberate fabrication because it was so obviously inaccurate – since we have the report itself – and, even if believed, would make no difference at all to the Tribunal’s decision because the architect cannot give evidence of any value about the ownership of the room.

28.   Miss Phillips is sure that her father would have mentioned to her the agreement about the Blue Room when he gave the property to her in 2007. She also says that the Land Registry surveyor who visited after she applied for registration of her title (as she was obliged to do pursuant to the Land Registration Act 2002 section 4) “raised no issues about the third bedroom on the second floor”. Miss Phillips said at the hearing that she did not recall the surveyor going in to the house but that he was confused by the dormer window of the Blue Room, which she told him belonged with the house. However, the title plan and the property description for number 12 do not indicate that the Blue Room is owned.

29.   In 2014 Thomas and Edward Wilkes punctured the lath and plaster wall to find out what it was made of. He says he did so because Miss Phillips’ report said that it was made of brick. In doing this Mr Thomas Wilkes regarded himself as damaging his own property. Miss Phillips called the police because of the damage done. The police visited Mr Thomas Wilkes and accepted his explanation. I take the view that the incident was the product of raised tempers, and it does not make any difference to my view of the credibility of either witness.

30.   Angela Phillips called two further witnesses, Jean Towers and Ann Gothard. Both are elderly and could not attend the hearing; each provided a witness statement and then answered questions in the course of the hearing on the telephone. I have no doubt about the mental competence of either of these witnesses; both struck me as very much “on the ball”.

31.   Jean Towers is Angela Phillips’ mother, formerly Jean Gray and then Jean Phillips She said that while she lived at number 12 there were always two bedrooms on the second floor. When she moved in in 1965 the Blue Room was used for storage; in 1969 or 1970 Angela was moved in there. Mr Phillips never mentioned to her any agreement or permission from Mr Thomas Wilkes, and although he was a private man they used to discuss everything together. She agreed that she could not say definitely, but she thought that if there was an agreement Mr Phillips would have said so.

32.   Jean Towers’ recollection of the relationships between neighbours is very different from Miss Phillips’; Mrs Towers said that relationships were “friendly enough”, although they did not go into each other’s houses. I accept her evidence on this point in preference to Miss Phillips’; Mrs Towers spoke candidly and without hesitation, and she is talking about a relationship of her own that she appears to recall clearly.

33.   Ann Gothard was a friend of Albert and Jean; she used to do Jean’s decorating and she recalls that number 12 was a three-bedroomed house, with one bedroom leading off another on the second floor (we heard later from Abigail Hillier that the bedroom on the right at the top of the stairs was not enclosed but was open to the bannisters, so that the Blue Room in effect led off it). Ann Gothard decorated the Blue Room ready for Angela to occupy. In her witness statement dated 31 October 2014 she said this was in about 1964. During the hearing she said 1965, because she says she worked it out from the ages of the children. In a letter dated 17 February 2015, in the trial bundle but not referred to at the hearing, she says that she was herself heavily pregnant in 1964, and that she decorated the Blue Room in 1972. I accept that she decorated the Blue Room, but it is not clear when, and I think it more likely to have been when Angela was a few years old. The discrepancy about dates here makes no difference to my decision.

 

34.   I turn now to the evidence given for the four Respondents, by three of them.

 

Thomas Wilkes

35.   Thomas Wilkes was the owner of number 8 from 1959 to 2003, and he still lives there with his wife. He was given the house in 1959 by his mother who bought it in 1958, and has lived there since March 1958, at which point it was, he says, habitable but not very good. He is in his eighties. He gave evidence clearly and confidently; he appeared to have clear recollections of events and conversations. I have no doubt about his mental competence. He had some trouble following the plan and getting around in the trial bundle, but that was a matter of eyesight and not of understanding. I accept his evidence as truthful and, subject to his admitted uncertainties on some points, accurate.

36.   Mr Thomas Wilkes is a carpenter and a builder; he understands the way that Walkers Hall Farm was built with transverse internal brick walls, such as those labelled E and D on our plan, and believes therefore that when the building was split up into numbers 8 and 12 the intention must have been that they would be divided by wall D.

37.   Mr Thomas Wilkes’s statement describes the second storey of number 8 as it has been since he moved in; a lath and plaster wall separating the Blue Room from the landing, and at the end of the landing the big room which became his daughter Abigail’s bedroom – it was renovated for her in about 1968 when they lost a bedroom on the lower floor (there were originally three) when the bathroom was put in. In Abigail’s room was a bricked-up arch in the wall, which was plastered when they moved in but was recently exposed by Mr Edward Wilkes by removing some plaster.

38.   Mr Thomas Wilkes has never had access to the Blue Room. He regarded it as roof space which he did not need, but he knew that it was on his deeds.

39.   He says that early in the 1970s he had been working away, at a power station as he used to do for weeks at a time. When he came home Abigail, who had been moved into the top bedroom had heard noises coming from the Blue Room. So he went round to see Albert Phillips. He says that he had a good relationship with Mr Phillips, who was a skilled gardener and would advise him on what to plant. They were neighbourly and amicable until 2008. So, he says, he went to see Albert and asked what was going on in the roof space – or, to quote what he said at the hearing, he asked “what’s all the shenanigans up there?” Albert explained that he needed an extra bedroom. Mr Thomas Wilkes says in his witness statement that Mr Phillips

“informed me that he had opened up the brick wall on the Blue Land on his side of the property and removed the door and replaced the same”

40.   The reference is, I think, to wall D.

41.   Mr Thomas Wilkes says that he was annoyed, but agreed that Mr Phillips could use the Blue Room provided that he maintained it and returned it on demand, restored to its original construction. He wishes now that he had charged rent for it, but it was the sort of thing you would do for a neighbour.

42.   So Mr Thomas Wilkes believed that Mr Phillips had opened up the arch in the brickwork at point C, and that it had previously been bricked up like the one at point F. When pressed on this point during the hearing he agreed that in fact he was not sure about that. He could not say for certain that the arch at point C had ever been bricked up. But I accept that his understanding at the time, and until pressed on the point, was that that was what had happened. He was clear in his evidence that Mr Phillips had put the door in. His brother-in-law did it; he knows that, he says, because Abigail was playing round next door and told him.

43.   What he assumes, he says, is that just after his mother bought the house, the archway at point F was bricked up and what had previously been a door there was left inside the room, with the intention that he would open up the lath and plaster wall and use the door there – but he never got round to doing so. He thinks that Mr Phillips used that door at point C. Because the boundary of the property on the deeds runs along wall D Mr Thomas Wilkes assumed that the arch at point C was bricked up until Mr Phillips put the door in.

44.   Angela Phillips says that she does not recall Mr Wilkes working away. She and the other children used to play in the yard and see him come home every night. I accept Mr Wilkes’ evidence on this point in preference to Angela’s childhood recollections.

45.   I accept Mr Thomas Wilkes’ account of the conversation and of the unwritten agreement.

46.   It was put to Mr Wilkes that if the Blue Room was his he would have taken it back when he needed another bedroom when his father moved in in the 1970s for a couple of years, instead of making Edward a cabin bed in the bathroom. Well, he said, he didn’t. Mr Phillips still needed the room. I find this plausible; there was no access to the Blue Room from number 8, so structural alterations would have been needed to take the room back.

47.   Mr Thomas Wilkes says that he maintained the roof of the Blue Room, and produced documents from Energy Save UK. It is not clear to me how much of the roof was referred to in those documents; Miss Phillips in her witness statement challenged what Mr Thomas Wilkes says about the roof, but I accept his evidence on this point.

48.   Mr Thomas Wilkes also says that the dormer window in the Blue Room was replaced when he had scaffolding up while he had his chimney repaired. He says that Mr Phillips asked the workman to get him a replacement dormer window, and he says the workman got him a window and must have fitted it, but that the work went on his (Mr Thomas Wilkes’) bill; he was challenged on this point but maintained his account and I accept his evidence. He accepted that Mr Phillips had wiring and heating put in the Blue Room – and there is nothing inconsistent between that and his account of the agreement.

49.   Mr Thomas Wilkes explained that he had a falling out with Albert in 2008, when the latter took sides with number 10 in a dispute about a right of way. I accept Mr Thomas Wilkes evidence that they were good neighbours before that. He didn’t give a thought to the Blue Room in recent years – it was, he says, no bigger than a garden shed - until Miss Phillips asked him to transfer title to her, when she wanted to sell the property.

50.   He agrees that he and his some Edward made a hole in wall A at point B on the plan. He believed that Miss Phillips was saying that it was a brick wall and he wanted to prove that it was lath and plaster. His point was that it therefore could not have been intended to be the dividing wall between the two properties. There are clearly misunderstandings here; Miss Phillips has not said that it was a brick wall, and it is not her case that the lath and plaster wall was intended, originally, to divide the properties, but that her father acquired title to it by adverse possession.

 

Edward Wilkes

51.   Edward Wilkes explained that he was aware of Abigail telling their father that she had heard noises from the Blue Room – he says there was a big commotion and his sister got excited - and that his father had gone to see Mr Phillips about it. In his statement he says this was in the late 1970s, but at the hearing he said he thought it was before then, and I take it that he puts this incident at around 1972, as did Mr Thomas Wilkes and Abigail Hillier.

52.   Like his father, Mr Edward Wilkes understood that the door at point C came off the archway at point F, when his grandma bought the house, and that the door was left in the Blue room with the intention that it be used later in the lath and plaster wall. He remembers his grandad telling him what a lot of work his father had done on number 8 to make it habitable.

 

Abigail Hillier

53.   Abigail Hillier likewise was not present when any agreement was made and was a small child at the time, but she too recalls the noise from the Blue Room when she was about 10 years old – which would place the occasion in about 1972. She thinks Angela was about seven at the time. She remembers Mick Gray, Mr Phillips’ brother-in-law, making the framework round the door to the Blue Room when she was round there playing. Like Angela, she recalls later conversations through the bedroom wall.

54.   She remembers that at that date the room on the right of the stairs of the second storey was open, and not partitioned off from the stairs. She also knew Sandra and Pamela Phillips, and worked with them later. She says that Pamela said the three of them shared a bedroom.

 

Have the Respondents changed their story?

55.   The correspondence between the parties, prior to the reference to the tribunal, featured some misunderstandings. Miss Phillips thought that the Respondents were claiming that there was a written licence agreement. They did not say that in any of the correspondence shown to me, and I think that was a misunderstanding on Miss Phillips’ part. She also thought that they were saying that her father had put up the lath and plaster wall. Hence her obtaining evidence from Mr Underwood that it could not have been constructed after the 1930s. The Respondents insist that they are not saying that; Edward Wilkes did refer to the wall as temporary in his letter to Miss Phillips’ solicitor dated 31 October 2013, and in his letter to HM Land Registry dated 21 April 2014 – but I do not understand him to be saying there that Mr Phillips put it up. His letter to the Land Registry is consistent with his understanding that the lath and plaster wall was not originally intended to divide the two properties and that there was an intention – as discussed in evidence by him and his father - that there should be a door put in it at some stage.  It is easy to see how what he wrote could have been construed as an allegation that Mr Phillips made the wall; but that is not what it says.

56.   Mr Thomas Wilkes’ statutory declaration made on 23 April 2014 and sent to Land Registry does refer at paragraph 25 to alterations that should not have been made by Mr Phillips; I understand these to refer to Mr Wilkes’ belief that Mr Phillips opened up the arch at point C; he goes on to refer at paragraph 28 to Mr Phillips having knocked through a brick wall. He does also say at paragraph 27 that Mr Phillips built a board and plaster wall; this must be a reference to wall A, and the Respondents concede that that wall was not built by Mr Phillips and have given clear evidence that the wall was in place since before the property was bought. I take paragraph 27 to be a mistake, not a deliberate falsehood, but it caused considerable confusion.

 

Discussion and conclusions

57.   It was pointed out during the hearing on behalf of the Respondents that Albert Phillips was a private man. I accept the respondents’ evidence that the two families got on well; Albert Phillips provided gardening advice. But they did not go into each other’s houses. I do not think it is surprising that a man who did not tell his daughter that she had half-sisters until she was 14 would not say to her, when she was a child, that the Blue Room was occupied by permission from next door. I accept that in later life he confided his finances to his daughter; but by then he may have put the agreement about the Blue Room out of his mind. It is not possible to say why the matter was not mentioned, but I do not find it incredible that it was not.

58.   I accept the evidence given by Mr Thomas Wilkes, with his lively recall of conversations and relationships. When he became aware that the Blue Room was in use, he challenged Mr Phillips in a friendly way and the pair came to an oral agreement. To him, this was loft space that Mr Wilkes had never used and never seen, in a ramshackle house that he was gradually renovating. He has direct knowledge of what happened, in a way that no other witness does. I do not find that Miss Phillips was dishonest; I find that she did not know.

59.   I do not find it particularly surprising that the Blue Room was never demanded back by Mr Thomas Wilkes, whose use for such a tiny room would have been limited. He had never seen it. In recent years his own and his wife’s failing health, and the fact that he does not need the room now, would have meant that he was unlikely to want to raise the matter – until, of course, Miss Phillips sought to register title to the room.

60.   By accepting Mr Thomas Wilkes’ permission to use the Blue Room, Mr Phillips acknowledged Mr Thomas Wilkes’ ownership of the room; his use thereafter cannot have been adverse possession because permission means that possession cannot be adverse. That is too well-established to require authority.

61.   The hearing proceeded until the very end on the basis that the only issue was consent; towards the end, Ms Ubhi suggested that by 1969 title had already passed by adverse possession. She relied heavily on the 1956 survey that recorded two bedrooms on the second floor of number 12. But we do not know whether that survey was preceded by an inspection. If it was, it may well indicate that the archway into the Blue Room was never bricked up and that there was always an open loft space there, accessible from number 12. We do not know and I make no finding about that. However, the only evidence of possession of that space dates from 1965 at the earliest. Anything else is conjecture.

62.   Taking the evidence for the Applicant at its highest I find that Albert Phillips was in possession of the Blue Room from around 1965, and that perhaps in 1969, more likely in 1972, he was given permission to use it by Mr Thomas Wilkes. Accordingly he was not in adverse possession of it for anywhere near 12 years.

63.   I have not discussed in this judgment the observations made by the Respondents on paper and at the hearing about the quality of the flooring in the Blue Room and about their concerns that wall A is not fireproof. I have to decide the case on the basis of the law relating to possession. The physical structure of the room in terms of the quality of the floor and of the thin wall is not relevant and I have not taken it into account in reaching my decision.

 

Accordingly this application fails, and I shall direct that the Chief Land Registrar shall not give effect to Miss Phillips’ application to be registered as proprietor of the Blue Room on the basis of adverse possession by her father.

64.   This Tribunal does not have jurisdiction to make any other orders about the Blue Room or the structures that surround it. But I have confidence that the Wilkes family will quickly do the work necessary to access the Blue Room from inside their own property, remove from it any items belonging to Miss Phillips (or allow her to do so from number 12), and close up the access between the properties at the point marked C on the plan so that this episode can be brought to an end.

 

Costs

65.   In this jurisdiction costs follow the event save in exceptional circumstances. I am therefore minded to make a costs order in favour of the Respondents. It may be that the parties can reach agreement on that basis. If they cannot do so, I shall permit the parties to make representations about costs.  I direct that the Applicants should submit any written argument on costs no later than 5pm 21 August 2015, and the Respondent may reply no later than 5pm 7 September 2015.  I shall then consider the matter further.

 

 

Dated this Monday 27 July 2015

 

 

 

 

 

BY ORDER OF THE TRIBUNAL