Analysis
The Appellants were the descendants of Edward Collingwood, who had conveyed a church and churchyard, for use as a chapel of ease for the parish of Newburn, to the Church Building Commissioners on 1 October 1837 (‘Conveyance’). As originally constructed, the church contained a burial vault or sepulchre lying below the central aisle of the nave. This had been expressly excepted and reserved to the grantor ‘… with full power for [the grantor and his heirs and assigns] to open such vault as aforesaid and use and repair the same at all reasonable times…’. The church had been closed for regular public worship and declared redundant following a Pastoral Scheme made on 9 February 2004 as the result of which the church building vested in the Second Respondent. The Church Commissioners wished to prepare a redundancy scheme for the future use of the church building but the existence of the family vault below the nave, and uncertainty as to its true ownership, prevented them from making any significant progress towards its preparation for alternative use for residential purposes and consequent disposal. The First Tier Tribunal, to whom two references had been made by the Land Registry following separate applications made by the Respondents for the first registration of title to the church building and churchyard, found that on the true construction of the Conveyance, the grantor retained paper title to the burial vault but that since 1940, when the last interment took place, successive incumbents of the church had been in physical possession and control of the vault, that the fact of possession and control of the church building constituted sufficient evidence of the intention to possess the vault and that the descendants of the grantor had lost their title by virtue of the incumbents’ adverse possession by (at the very latest) 1953. The Appellants appealed.
Held (allowing the appeal):
As a matter of first principles, when the owner of land is entitled in possession, time begins to run as soon as both (a) the owner has been dispossessed or has discontinued his possession, and (b) adverse possession has been taken by some other person. Discontinuance occurs where the owner abandons possession of the land; but abandonment will not be likely presumed, and the slightest acts by the owner will negative discontinuance. Dispossession of an owner would occur in a case where, there being no discontinuance, a squatter assumes possession in the ordinary sense of the word. Dispossession does not therefore require an ouster of the owner. Thus, it was not necessary that the owner should have been driven out of possession; if the owner abandons possession, or if the owner dies and the person next entitled does not take possession, time will begin to run as soon as adverse possession is taken by another. What matters is not how the owner has ceased to be in possession, but that some other person has taken possession that is adverse to that owner’s title.
On the facts of the case, it was not accepted that the Respondents had been in exclusive possession and control of the burial vault, or that they had the requisite intention to possess the vault by treating it as their own, since the last interment. The Respondents could not demonstrate physical possession of the vault because they had never entered it or sought to exclude the descendants of the grantor from exercising any of their rights attaching to paper ownership. The Second Respondents and their agents, the Church Commissioners, had afforded access to the interior of the church, and the terms of their correspondence with the Appellants, prevented them from asserting that they had the requisite intention to possess the vault to the exclusion of the paper title owners. Therefore, it could not properly be said that the descendants as paper title owners had ever been dispossessed, or discontinued or abandoned their possession of the vault; nor could it properly be said that the Respondents, or either of them, had ever taken adverse possession of the vault. The Appellants’ right to ‘use and repair’ the vault must include the right to have access; the grant of an easement includes a grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment, and access to the vault was clearly ancillary to the rights to use and repair it. The Chief Land Registrar was directed to give effect to the Second Respondent’s application for first registration of title to the church building but excluding the burial vault which had been excepted and reserved to the grantor and his successors in title by the Conveyance.
JUDGMENT HODGE QC Introduction [1] This is an appeal from a decision dated 11 June 2018 of the Land Registration Division of the Property Chamber of the First-tier Tribunal (Judge Elizabeth Cooke). The FTT’s decision was made on two references made by HM Land Registry arising from separate applications made by the Respondents for the …