Kenneth Rowlands & Anor v Gregory Bishop & Anor

For the third condition in paragraph 5(4) of Schedule 6 to the Land Registration Act 2002, an applicant’s belief that adjoining land belongs to them need not be legally correct. An unwritten agreement or conversation may support a reasonable belief even if it has no legal effect. The question is whether the belief was reasonable on the evidence, including the physical features and use of the land. An appellate tribunal may interfere with a credibility finding where it is irrational, unsupported by the evidence, or unfair because the point was not put to the witness.

The appellants had used parts of the garden at Woodlands, which formed part of the registered title to the neighbouring Johnston Hall, since purchasing Woodlands in 1996. Their application to be registered as proprietors by adverse possession was referred to the First-tier Tribunal under section 77 of the Land Registration Act 2002.

The First-tier Tribunal accepted the requisite period of adverse possession but found that the appellants had not established the third condition in paragraph 5(4)(c) of Schedule 6. It rejected the first appellant’s evidence that he believed the land was his and held that an informal boundary agreement could not support a reasonable belief because it had no legal effect. The appeal concerned whether those conclusions were legally and evidentially sustainable.

1. Appeal allowed. The finding that the first appellant did not believe that the land within the fences belonged to him was set aside. The Upper Tribunal substituted its own finding that he was telling the truth. The finding was irrational because the reasons relied on were flimsy and unsupported, and unfair because the allegation had not been put to him in evidence.
2. An appellate tribunal approaches challenges to credibility findings with caution because the first-instance judge saw and heard the witnesses. Intervention is nevertheless justified where the finding involves an error of law or is irrational. A witness should also have a fair opportunity to answer a material allegation before it is relied on.
3. The First-tier Tribunal’s conclusion that an agreement without legal effect could not found a reasonable belief was manifestly incorrect. The third condition in paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 does not require the belief to be legally correct. A legally ineffective agreement or conversation may therefore support the required reasonable belief.
4. The evidence supported reasonableness. The appellants had been told of an agreement, the land was fenced and used consistently with it, and the physical position of the boundary was capable of obscuring the discrepancy with the registered title plan. The respondents’ own failure to notice the discrepancy until 2019 was a strong pointer towards the reasonableness of the appellants’ belief.
5. The disputed land was sufficiently in the area of the general boundary for the third condition, although it was larger than the land considered in Dowse v Bradford MBC [2020] UKUT 202 (LC).
6. The decision refusing registration was set aside. The registrar was directed to respond to the application as if the respondents’ objection had not been made.

• First-tier Tribunal (Property Chamber): Accepted that the requisite period of adverse possession had been established, but rejected the application because paragraph 5(4)(c) of Schedule 6 to the Land Registration Act 2002 was not satisfied.
• Upper Tribunal (Lands Chamber): Allowed the appeal, set aside the relevant findings, substituted its own decision that the statutory condition was satisfied, and directed the registrar to proceed as if the objection had not been made.