REF/2015/0342

 

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

DANIEL RICHARD DOBRZANSKI

 

APPLICANT

 

and

 

JAN HANSEN

 

RESPONDENT

 

 

Property Address: Land adjoining Milton Ernest Hall Nursing Home, Bedford Road, Milton Ernest, Bedford MK44 1RJ

 

Title Number: BD295721

 

 

Before: Judge Michell

 

 

Sitting at: 10 Alfred Place, London

On: 14^th and 15th January 2016 and 11^th March 2016

 

 

Applicant Representation: In person

Respondent Representation: Mr Ian Bain, counsel, instructed by HRJ Foreman Laws

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

APPLICATION FOR FIRST REGISTRATION -ADVERSE POSSESSION OF UNREGISTERED LAND- WHETHER FACTUAL POSSESSION-WHETHER INTENTION TO POSSESS  

 

Cases referred to

 

Powell v McFarlane (1977) 38 P and CR 452

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 Daniel Dobrzanski (“Daniel”) seeks registration of land adjoining the grounds of Milton Ernest Hall.  The paper title to the land (subject to the Limitation Act 1980) is vested in the estate of the late Mr Ludwik Dobrzanski.  Mr Jan Hansen (formerly called (Jan Dobrzanski) (“Jan”) is the executor of the estate of the late Mr Ludwik Dobrzanski.  Probate of the will dated 14^th May 1985 was granted to him on 2^nd June 2014. He objects to the application.  The matter was referred to the Tribunal for determination.

 

2.         I inspected the land accompanied by the parties and their representatives on the afternoon before the first day of the hearing.  Milton Ernest Hall (“the Hall”) is a large Victorian house standing on the banks of the River Great Ouse on the outskirts of the village of Milton Ernest.  It is currently used as a nursing home.  Access to the Hall is from the A6 Bedford Road, which lies to the east.  The land the subject of the proceedings was described throughout the proceedings as three fields, the fields being referred to as “Field 1”, “Field 2” and “Field 3”.  Field 3 is bounded by Bedford Road on the east side, the old drive to the Hall on the north-west side and on the south and south-west side by the new drive to the Hall.  This drive leads west of Bedford Road before turning an angle of approximately 90 degrees to run north to join the old drive.  There is a fence along three sides of Field 3.  The fence is mainly of barbed wire attached to posts made from old telegraph poles but at the eastern end of the southern boundary there is a run of wooden post and rail fencing. Along the fourth side, that adjoining Bedford Road, there is a tall stone wall.  I was shown the location of where there was said until 2014 to be a gap allowing vehicular access into Field 3 from the new drive. I was also shown a place in the north-west corner of Field 3 where the wire of the fence was slack enough to allow it to be stepped over to gain access into the field.  Field 3 is rough grass land. There was clearly visible a rough path running very approximately from the north-west corner of Field 3 to the area where the former gap in the fence along the south boundary was said to have been.  The path appears to have been formed by people walking over the grass.     

 

3.         Field 1 lies to the south of the new drive and adjoins Bedford Road.  Along the boundary with Bedford Road there is a tall stone wall and at the southern end, a chain-link fence.  The field can be accessed from Bedford Road through a gateway in the stone wall.  There is a tall metal gate in the gateway.  The gate is wide enough to allow cars to pass through.  A concrete road runs from the gateway into Field 1, across the north-side or front of a shed (called “the tractor shed” in these proceedings), along the west side of the shed and then runs south west to another shed (called “the store shed” in these proceedings).  There is a stand pipe at the east end of the field, providing mains water  The tractor shed is a substantial brick building with double doors on the north or front elevation and a pitched corrugated asbestos sheet roof.  There is a pedestrian door in one of the large double doors, enabling access into the shed without opening the main doors. The tractor shed is in a reasonable state of repair.  The store shed is also made of brick but it is a state of some disrepair and was not being used for anything at the time of my inspection. There is a post and barbed wire fence along the boundary of Field 1 where it adjoins the new drive.  At the east end this fence is behind a wooden post and rail fence.  The section of post and wire fence behind the post and rail fence is obviously newer and is considerably taller than the remainder of the post and wire fence.  I was shown a place towards the west, part the way along the new drive, in approximately the position where there is a 90 degree bend in the new drive, where the barbed wire is slack and can be stepped over.  I was also shown a place close to the east end of the new drive where it was said it was formerly possible to unhook the barbed wire of the fence in order to gain access on foot into Field 1.  This was not possible at the time of the site inspection.  There is a 33’ long static caravan in Field 1 at a point close to the boundary with Field 2 and close to the southern boundary of Field 1.

 

4.         Field 2 lies to the south west of Field 1 and adjoins the River Great Ouse.  Adjoining Field 2 to the north is a lawn forming part of the grounds of Milton Ernest Hall. There is no physical feature of any kind to mark clearly the line where Field 2 ends and the front lawn of Milton Ernest Hall begins.  Indeed, when I was inspecting the site, the parties disagreed about the approximate location of that boundary.  Fields 1 and 2 are for the most part rough grass land with wooded areas.  They have together sometimes been referred to as “Louis Park” or “Ludwik Park”.                    

 

Background

 

5.         Ludwik Dobrzanski’s children are Jan, Annette Louise Thomson (formerly “Gurney”) (“Annette”), Sharon Beckett, Callum Dobrzanski (who died in 2013), Nicholas Dobrzanski (“Nicholas”), Jeremy Dobrzanski (“Jeremy”) and Genowefa Zieba.  Daniel is the son of Nicholas. He was born on 20th February 1983.  Ludwik died on 15^th December 1990.

 

6.         Ludwik sold the Hall but kept the three fields. The Hall is registered under title number BD100871.  After selling the Hall, Ludwik lived at 27 Wendell Drive, Bedford.  Following his death, there was a long running dispute about the disposal of his estate.  Ludwik died leaving three wills or purported wills.  The will made in 1985 is the will that has been proved.  Under that will, the entire estate passes to Jan and Genowefa.  The other two wills were both made in December 1990, on in Polish being dated 8^th December but purportedly signed on the 14^th December and the other in English, being dated 14^th December 1990. These benefited Ludwik’s housekeeper/companion Mrs Maluga as well as his children, save for Cullum.  Some members of the family suspected that the 1990 wills were not validly executed.  Mrs Maluga issued a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in 1993.  She remained living at 27 Wendell Drive until 2003 when a possession order was made against her.  The proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 were struck out in 2004.   

 

The Application

7.         The application to HM Land Registry was made by Daniel and his father, Nicholas Dobrzanski jointly.  Nicholas completed a form ST1 and signed the statement of truth in box 14 of the form. The form is dated 26^th August 2014.  In box 2, he put a cross in the box to state that he was the person currently in adverse possession.  In box 5, which is headed “Acts of adverse possession”, he stated as follows

            “Since February 1999 I have paid for electricity to be provided to the shed on Ludwik      Park.

            I have with my son Daniel Dobrzanski maintained the land as much as possible.  I have renewed the lock to the main gate and have the key in my possession along with             my son who also has a key to the gate.

            We have put a static caravan on the land for our use when we are fishing and         maintaining the land.

            My son has kept cars in the shed so that they can do them up and maintain them.”

In box 6, headed “Enclosure of the land”, he stated

            “I have tried to make sure the lane is as secure as possible.  I have provided a heavy           duty chain and padlock and only my son and I hold the keys to this.  I have also          maintained the perimeter fence and walls”. 

Subsequently, Nicholas withdrew his application but the application was continued by Daniel in his sole name. 

 

The Law

8.         Section 15 of the Limitation Act 1980 provides as follows:

“15(1)        No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

(6)   Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

9.         Section 17 of that Act providesE+W

“Subject to—

(a) section 18 of this Act;

at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished”.

Section 18 deals with settled land and land held on trust and is not relevant.

10.         Schedule 1, paragraph 1 to the Limitation Act 1980 provides as follows:

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession in the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action, shall be treated as having accrued on the date of the dispossession or discontinuance.”

 11.         Schedule 1, paragraph 8, provides:

“(1)   No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’) and where under the proceeding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

(2)                           …..…..

(3)                           ………

(4)     For the purpose of determining whether a person occupying any land is in adverse possession of land it shall be not assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.

This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”

 12.         Thus, the right of action to recover the land is barred under the Limitation Act 1980 whenever 12 years have elapsed from the time when any right of action accrued.  It does not have to be a period immediately before an action is brought.  When the right of action to recover the land is barred, the title of the person formerly having the right to bring the action is extinguished. 

13.         The question to be answered when considering whether a person occupying land is “in adverse possession” for the purpose of Schedule 1 paragraph 8 to the Limitation Act 1980 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 worlds 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

Daniel’s Case

 

17.       Daniel’s case is that he has used the tractor shed exclusively since 2000, has control of the access to Fields 1 and 2 because he has held the key to the metal gate into Field 1 since 2000, has maintained the boundary fences around all three fields, has exercised control of the fields and has used Field 1 by putting a static caravan on it and digging trenches for electricity cables and drains.  He says that he has had exclusive possession of the fields since 2000.

The Evidence

18.       Daniel’s evidence was as follows.  In 1999 Nicholas was storing a car in the tractor shed.  An electricity account for the supply of electricity to the tractor shed was opened in the name of Nicholas in February 1999 and continued to be in his name until 2014.  Daniel said that after the tractor shed was broken into in March 2000, he secured the tractor shed with a new lock and the metal gate with a new chain and padlock. Both he and his father had keys to the new lock for the tractor shed.   His father supplied the padlock for the gate and had a key to that padlock.  He said that from August 2000 when he passed his driving test, he used the land to store and work on cars.  In cross-examination, he said that in 2000 he removed a car belonging to his father from the tractor shed and parked it by his father’s house. He said that he lost his key to the tractor shed and then took the copy of the key his father had been holding.  He said that his father was incorrect in stating in correspondence subsequently that he had a key to the shed.    

 

19.       Daniel produced photographs of cars he was working on in and around the tractor shed in May, July, August 2003, December 2004, June2005, December 2007, May, June and December 2013.   Daniel denied that he used the tractor shed with Nicholas’s permission.  He said that Nicholas had been wrong to state in correspondence that Daniel had been using the tractor shed with his permission.

 

20.       Daniel fitted a burglar alarm to the garage/tractor shed in 2007 (bought on eBay in August 2007).  He said that he then also installed further bolts to secure the front doors of the tractor shed.

 

21.       After May 2009 when the tractor shed was again broken into, Daniel said that he hung a new section of mesh fencing beside a broken section of the boundary wall with the highway.  

           

22.       Daniel said that in 2001 he discovered Bert Petty shooting on the land.  He informed him that the land did not belong to the Hall and that if he wanted to shoot on the land, he would need to ask for Daniel’s permission.  He said that from then on, Bert Petty asked him for permission each time before he went on the land to shoot. 

 

23.       Daniel said that up until 2008 he was going to the land monthly but from then for the next 5 years while he was studying for a degree, he called in weekly, for about 20 minutes at a time.

 

 24.      In July 2010, Daniel bought a used static caravan and had it delivered to field 3. The next day, with the permission of the matron of the nursing home, he brought the caravan over the lawn of the Hall and across Field 2 to a position close to the boundary between Fields 1 and 2.  In September 2010, Daniel dug a trench with the intention of laying an electricity cable across field 1 to the site of the static caravan.  However, he did not install the cable.  He also dug a pit to be used as a cess pit but after Annette complained about this to him on the site, he did not go ahead with constructing the cess pit and covered over the hole.  In cross-examination he said that he and his father had stayed in the caravan when they went fishing on the land but otherwise it had not been used.

 

25.       Daniel said that he did repairs to the boundary fences from time to time.  In cross-examination he said that he thought he had repaired the fence on about 3 occasions. He said that he also regularly chopped down low level trees and branches in fields 1 and 2.  In cross-examination, he said that he had chopped the trees every 5 years or so.

 

26.       Daniel denied that at the east end of the new drive, the barbed wire along the boundary of Field 1 had been looped over a post and could be lifted off.  He said it had been tacked to the post.  He also denied that there had been a section of wire along the southern boundary of Field 3 that was either missing or so loose that it ran along the ground such that cars could get into Field 3 through the gap.   

 

27.       In 2009 the management of Milton Ernest Hall had arranged for the barbed wire to be removed along the new drive and for a post and rail fence to be erected.  As part of the works, the telegraph poles being used as fence posts around Field 3 had been removed.  In 2014 Daniel put up barbed wire beside the fence along the boundary of Field 1 and … 

 

28.       On 19^th July 2013 Daniel wrote to Jane Marland of HRJ Foreman Law on behalf of himself and Nicholas concerning Ludwik’s estate.  In the letter he wrote

            “I would like to register an interest in the estate for myself and my father.  Both    myself and my father have been maintaining the land at Milton Ernest for many years        at our cost and repairing damage done to the property from intruders as well as general           maintenance.

            I would like to know what further steps will need to be taken to secure any inheritance     due for my father and myself regarding the land and the rest of the estate.”

 

29.       On 5^th September 2013 Nicholas wrote a letter to Geraldine Kennedy of HRJ Foreman Law.  The letter included the following

            “Since February 1999 I have been providing electricity to the shed so that myself and       my son can use the shed for our convenience when we are at Milton Ernest.  

            My son and I tidy up the land as much as possible and make sure that the land is   secure, particularly around the perimeter. …

            As well as repairing the property we have made the shed more secure by adding    additional locks and an alarm system in the shed due to the frequency of burglaries         which have since reduced.  My son, with my permission is also using the shed to work             on his vehicles.  We both use the shed to store any equipment we need to use on the       land. 

            We have been using this land for the last 14 -15 years as a family, as you will see is            quite clearly evident from the documents attached.

            We also have a mobile home on the land which we use when we are at Milton.”

 

30.       On 25^th July 2014, Ms Kennedy wrote to Nicholas saying that a grant of probate had been issued to Jan Hansen on 2^nd June 2014 and stating

            “Now our client has the Grant of Probate, he must take steps to administer the Estate        and he is therefore no longer in a position to allow your or other members of the        family to use the land at Milton Ernest.  We accordingly give you notice you must    remove the mobile home you have placed on the land and remove any other property      belonging to you that has been stored there.  The key to the tractor shed should be        returned to our client”.

When it was put to Daniel in cross-examination that it was only after he saw this letter that he for the first time had the intention or desire to claim the land as his own, Daniel said that he agreed with that.  Prior to seeing this letter, he did not know exactly where he stood.    

 

 

31.       On 3^rd September 2014 Nicholas wrote to Ms Kennedy a letter in which he refused a request made by Ms Kennedy in a letter dated 25^th July 2014 on behalf of Mr Hansen that he return the key to the shed.  In the letter Nicholas stated

            “With regards to the keys to the shed and gate, they will not be returned to Mr Hansen     as they have never been the property of Mr Hansen or the estate of the late Mr    Dobrzanski.  These are then property of myself and my son, any damages or removal             of any property and belongings of myself and my son that are at the land at Milton          Ernest will be followed up with legal action.”   

 

 

32.       On 23^rd August 2014 Daniel posted a question on a website called “thelawforum.co.uk”.  Under the heading “Is adverse possession the way to go?”, he asked for advice.  This post included the following statements

            “Myself and my father have for several years treated the land as our own”

            “We have locked the main gated entrance and have maintained all fencing when it has      been broken  etc also therefore keeping the world at large out of the property except       … anyone wandering on to the land without our permission (trespassers) ...”

            “We have never given the key to the gate to the uncle in question that is administering      the will …”

            “We have paid all the electricity bills for the properties and also maintained the land”

            “I myself have used it to store numerous vehicles on over the years and also for about       5 years have had a static home on the land which I sometimes stay in when I go fishing or stay over late when cleaning up the land”. 

            As the uncle is now saying he wants all the land for himself myself and my father find      this very unfair and would like to share all the land between the brothers and sisters as         was originally intended”. 

 

33.       Daniel accepted that family members had used the land without seeking his permission and that he had no objection to their using it. Asked about the use of the field by family members, he said that he did not need to tell family members not to use the field.  If they wanted to walk around the land then his attitude was “so be it”.

 

34.       Jeremy gave evidence.  He is Ludwik’s youngest child.  His evidence was that he had visited the land for recreational purposes on numerous occasions since his father had died.  When he married on 24^th July 2010, he held the reception in a marquee on Field 3.  He didn’t ask Nicholas or Daniel for permission first.  Daniel said that he had had a conversation with Jeremy prior to the wedding about Jeremy using the field but he could not recall what words were used. In preparation for the wedding reception, Jeremy said he had arranged for a local farmer to cut down the grass. Portable toilets were put on the land and a marquee was erected.  A large number of guest pitched tents in the field.  Access to Field 3 was through a gap in the southern fence where there was no wire.  Jeremy said that he had a set of keys to the metal gate into Field 1 up until 10^th October 2014 when the found the lock had been changed.  Prior to that from 2008 he had often gone into Field 1 with his brother Cullum to collect bricks that were stored there.  He had on those occasions cut back brambles and trees that were growing over the concrete road.  When on 10^th October 2014 he found the lock to the gate had been changed, he had called Daniel.  Daniel told him that he did not have keys and that his father did not give him keys.  He said that he had spoken to Daniel about the state of the land outside the tractor shed.  Daniel accepted that Jeremy had spoken to him about this but said that he had only spoken to him on this subject once and Daniel had just ignored Jeremy.

 

35.       Annette gave evidence.  She said she had visited the land on numerous occasions over the years for recreational purposes.  She parked her car in Field 3 getting in via a place on the southern boundary where there was a gap in the fence across which there had at some time been a single strand of loose barbed wire over which it was possible to drive.  She had usually got into Fields 1 and 2 by climbing over the fence in a place close to the bend in the new drive where the wire was very loose and could be stepped over easily or by walking over the lawn of the Hall and into Field 2.  She and her children used to pick plums and apples from the trees there.  She said that in September 2006 she discovered that management of the Hall had cut the grass and trees in Field 3.  She had made a complaint to the police about this at the time.  On this occasion, she obtained a key from Daniel’s mother to the gate into Field 1 so that she could drive into Field 1 to move the logs from the cut trees in Field 3 into Field 1.  She was not able to use that key after about 2008 because the lock was changed.  On one occasion she had been in Field 1 when she saw Daniel and his girlfriend by the tractor shed.  The doors were open.  She saw a small blue watering can in the shed and went in and took it because it had belonged to her father and had some sentimental value to her.  She had seen Daniel in 2010 digging a pit for a cesspit across from the mobile home.  She had told him that he could not live in the mobile home or dig a cesspit.  Later that same year, she had demolished a hide for shooting that had been constructed on the land.  She had seen evidence animals being shot on the land and thought that demolishing the hide would discourage shooting.  Daniel confirmed in his evidence that the hide had been destroyed.  With her husband and sons, she had gone onto the land in early 2010 to use a metal detector she had received as a Christmas present 

 

 

36.       Jan Hansen gave evidence.   From the mid-1990s onwards when he visited the land he parked in Field 3.  There was a place along the southern boundary where the wire had dropped to the floor and could be driven over.  He usually accessed Fields 1 and 2 by stepping over the fence in a place near to the bend in the new drive.  The wire was low there and easy to step over.   When he brought his 80 year old mother to visit the land in 2008, both he and his mother went into Field 2 in that way.   There was another access by the east end of the new drive, where wire was looped over a post ad could be lifted off but he rarely used that means of entering Field 1. 

 

37.       Jan said that until 2001 a local farmer, called Mr Storey, grazed cattle on Field 3, keeping them on the land with the use of an electric fence.  

 

38.       Jan recalled a telephone conversation he had with Daniel in 2005.  Daniel called him to ask if he would provide funds for Daniel to set up a business working with cars.  Jan said he could remember the figures Daniel gave for projected earnings from the business.  Jan said that he told Daniel his business idea was not realistic and that he should stop working on cars in the tractor shed because it was an agricultural building.  Jan said that Daniel did then move the cars off the land over the next few months but subsequently Daniel had moved cars back onto the land. Daniel denied that he had ever had any such conversation with Jan.  

 

Findings

39.       I find that Daniel did not have factual possession of the land in dispute or of any part of it.  He did not have a sufficient degree of exclusive physical control and he did not deal the land generally as an occupying owner would be expected to have dealt with it.

 

40.       He did not have a sufficient degree of exclusive physical control of Field 3.  I accept the evidence of Jan, Annette and Jeremy that there was a large gap in the fence along the boundary with the new drive and that it was possible to drive through this gap into Field 3.  I found all three to be generally credible witnesses.  Daniel was a less credible witness.  I found his attempts in cross-examination to explain away why he had referred in correspondence to the land being owned by his “family” and what his father had written in support of the initially joint application for registration of the land to be unconvincing.  He appeared prepared to say on occasions what he felt would further his case, without concern for its factual accuracy.  On the issue as to the existence of a gap in the fence into Field 3, I prefer the evidence of Jan, Annette and Jeremy to that of Daniel.       

 

41.       I also accept that it was possible for pedestrians to walk into Field 3 over the wire in the north-west corner.  The existence of a path or track over the field shows that a number of people (or some people fairly frequently) have walked over the field.  There is no evidence of Daniel having given anyone permission to walk over that field.  The reality is that he has not exercised control over it.

 

42.       Further, the use of Field 3 by Jeremy for his wedding is some further evidence that Daniel has not had exclusive control of that field.  Having seen Jeremy give evidence, I accept that he did not ask Daniel for permission to use the field.  He would not have done so.  He did not think Daniel was in any position to say whether or not he could use the field.     

 

43.       Daniel did not deal with Field 3 as an occupying owner could be expected to deal with Field 3.  He did nothing in the field.  It just remained unused rough grass land.  An occupying owner could be expected to use it for agriculture or for the grazing of horses or to let it out or licensed others to use it for such purposes.  Daniel did none of these things.    

 

44.       Daniel did not have sufficient exclusive physical control of Field 2.  That field was and remains open along its border with the lawn of the Hall.  Daniel’s email letters to the owners of the Hall in 2012 indicate that visitors to the Hall were wandering over Field 2.  That is not surprising because there was nothing at all to prevent them from doing so.  Indeed, anyone visiting the Hall could have thought quite reasonably that Field 2 formed part of the grounds of the Hall.

 

44.       Further, Daniel did not deal with Field 2 as an occupying owner could be expected to have dealt with Field 2.   It could have been used in a similar way to Field 3.  Daniel made no real use of Field 2.

 

45.       It is appropriate to consider the tractor shed and the rest of Field 1 separately.  The tractor shed is a physically distinct piece of property.  Looking first at the field not including the tractor shed, I do not consider that Daniel had a sufficient exclusive physical control of the land.  Annette, Jeremy and Jan all made some use of the field.  They walked on it. Annette collected fruit from the trees and used a metal detector on it. Annette brought her car into the Field in about 2006 having obtained a key from Daniel’s mother and was able to use that key until 2008 when the lock on the gate was changed.  Cullum and Jeremy stored bricks on it. Jeremy’s evidence was that he had a key to the lock on the gate and there is no reason for me to doubt his evidence on this.  All the family members used the field without seeking Daniel’s permission.  Nicholas also used it.  Daniel himself said that he went fishing on the land with his father. Daniel accepted that members of the family, including Annette and Jeremy used the field and that he did attempt to stop them or given them permission to do so.      

 

46.       Daniel’s use of Field 1 (apart from the tractor shed) did not amount to dealing with the land as an occupying owner would have dealt with it.  He parked the caravan in the field only in 2010 and though he started to dig trenches, he did not complete the installation of power and drainage.  Using a corner of the field to park an old caravan does not amount to using the land as an occupying owner would and in any event, this only started in 2010.  I do not consider that Daniel’s conversations with Bert Perry show that Daniel was dealing with the land as an occupying owner was.  He was in the field from time to time and more often than any other single member of the family.  It is not surprising that he asked to be notified before Bert Perry went shooting on the land.  I consider that this was more a matter of taking a simple precaution for his own safety than an indication that he was dealing with the land as an occupying owner or exercising exclusive control over it. The occasional cutting of branches and brambles did not amount to factual possession.  It was not done very frequently.  Daniel suggested about it was done about every 5 years and the evidence of Jeremy indicates that it was not done so often as to keep the concrete road free of brambles.

 

47.       As to the tractor shed, the evidence is that the greatest use of the tractor shed since August 2000 has been by Daniel.  He has kept and worked on various cars there over the years from 2000 until he made the application for registration.  He purchased and fitted the burglar alarm to the tractor shed.  He fitted additional bolts to the doors.  However, Nicholas said in his letter of 13^th September 2013 that Daniel’s use of the tractor shed was with his permission and that both he and Daniel used the tractor shed to store equipment they used on the land.  It is regrettable that neither party called Nicholas to give evidence.  In the absence of evidence from Nicholas and though I was not completely convinced by Daniel’s attempts to explain away what his father had written, I do not think I would be justified in rejecting Daniel’s evidence that he alone kept things in the tractor shed and that from 2000 only he had a key to the tractor shed.      

 

48.       I then turn to consider whether Daniel had the intention to possess the disputed land or any part of it.  I have no doubt that he did not have any such intention.  On the evidence, I find that Daniel did not have an intention to exclude the whole world from any part of the land.  He did not intend to exclude members of his family, by which I mean Jan, Nicholas, Annette or Cullum.  All went onto the fields and made some use of them without any objection from Daniel or any attempt to stop them.  Though none of them made any real use of the tractor shed, I do not consider Daniel intended to exclude them from the tractor shed.  The locks and burglar alarms were fitted to the tractor shed in order to protect Daniel’s cars and tools and not to keep family members out.  Daniel did not object when Annette went into the shed to recover the watering can she wanted.  His letters of May 2012 indicate that he considered that the disputed land was owned by his family and not that he wished to exclude his family.  Furthermore, it seems to me to be clear from Daniel’s post on the internet on 23^rd August 2014 that he did not ever have an intention to exclude his father from any part of the land.  If he had so intended, he would not have written in that post that he and his father had for several years treated the land as their own. It is clear from the evidence that the idea of claiming title to the land by possession is something that occurred to Daniel only after it became clear that neither his father nor he would inherit any interest in Ludwik’s estate.

 

49.       If, contrary to my finding, Daniel had a subjective intention to possess the land, he did not manifest that intention by unequivocal action.  Anyone coming onto the land may have formed the view that Daniel was intending to safeguard the cars he was keeping in the tractor shed, but it would not have been clear to the paper owner of the land that Daniel was intending to possess it.                

 

Conclusions

50.       Daniel has not established that he had factual possession of the land the subject of his application, with the intention to possess.  Accordingly, his application to be registered as proprietor fails.  I shall direct the Chief Land Registrar to cancel the application.

 

Costs

51.       My preliminary view is that Daniel must pay Jan’s costs of the proceedings.  Daniel has not succeeded on his application.  Ordinarily the unsuccessful party is ordered to pay the costs of the successful party.  I know of no facts to take this case out of the ordinary. 

 

   

BY ORDER OF THE TRIBUNAL

 

 

 

 

DATED THIS 29^TH DAY OF APRIL 2016