Julia Florence Searle v Baron Alexander Deschauer & Anor

(1) BARON ALEXANDER DESCHAUER (2) SHOSHANA GILBERT Respondents Property Address: Land adjoining South Lodge, Wilderwick RH19 3NR Provisional Title Number: S878917 __________________________________ SUBSTANTIVE DECISION __________________________________ Cases Cited Brown v Ridley [2025] UKSC 7 Iam Group Plc v Qamar Chowdrey [2012] EWCA 505 Powell v McFarlane (1979) 38 P&CR 452 The Hearing and the Site Visit

1. This is an adverse possession claim under Schedule 6 of the Land Registration Act 2002.

2. The hearing took place over 2 days in person. The Applicant represented herself. The Respondents were represented by the First Respondent. The Second Respondent attended the site visit and the first day of the substantive hearing, but she did not make any submissions and did not give any evidence. Therefore, for ease of reading, when I refer to “the Respondent” in the singular, I shall be referring to the First Respondent.

3. On the day before the hearing started, I visited the site in the presence of all parties. They had the opportunity to show me features of the land they wanted to draw to my attention. The Background and the Application

4. The Applicant is the registered freehold proprietor of South Lodge, Wilderwick, Sandhawes Hill, a house and garden in East Grinstead registered under title numbers SY552125 and WSX117402 (together: “South Lodge”). South Lodge is registered under two separate parcels for what are likely to have been administrative reasons. I am told that the boundary between two counties (or two HMLR administrative areas) runs through the property. That may explain the different prefixes of the title numbers.

5. The Respondents have been since 25 July 2016 the freehold registered proprietors of a large area of land in East Grinstead known as “land forming part of the Wilderwick Estate”, which is registered under title number SY01591.

6. The Applicant claims title to a piece of land (“the Disputed Land”) adjacent to the garden part of her registered title. The Disputed Land is part of the Respondents’ registered title to “land forming part of the Wilderwick Estate”. The Disputed Land is shown coloured blue and mauve on an application plan prepared by HM Land Registry (“HMLR”).

7. It is common ground between the parties that the Disputed Land is not land within the Applicant’s paper title to South Lodge.

8. At the hearing and in written submissions, there was a question whether all of the Disputed Land is registered land. The Applicant submitted that the mauve part of the Disputed Land is unregistered land. The basis for her assertion was her recollection that a surveyor (who did not attend the hearing and for whom no report or statement was provided) had told her that the mauve land was unregistered. I am satisfied, from having examined the Respondents’ register of title and filed plan and from having seen an index map search of the area, which was included in the bundle, that the whole of the Disputed Land (including the mauve land) is registered land which is part of the Respondents’ title. I shall therefore consider the whole of the application under Schedule 6 of the Land Registration Act 2002. The application does not include any unregistered land to which the Limitation Act 1980 would apply.

9. The image below is an extract from a plan attached to a witness statement by the Applicant dated 30 June 2022. It is reproduced here for purely illustrative purposes and does not represent any findings on my part about the exact location of any boundaries or plots. I have altered it, resized it and extracted it from a PDF reproduction of the plan, so it is not to scale and may have suffered distortion. In case the colours on the plan are not clear, I have typed the names of the colours and added an arrow.

10. In this image: • The land coloured yellow is a representation of the land within the Applicant’s registered title SY552125 • The land coloured pink is a representation of the land within the Applicant’s registered title WSX117402 • The yellow and pink land taken together therefore constitute a representation of the land within Applicant’s current registered title to South Lodge. • The land coloured blue and mauve is a representation of the Disputed Land • The land on the right side of the image coloured brown/orange is not relevant for the purposes of this decision.

11. At the time of my site visit, the Disputed Land was completely enclosed together with the land in the Applicant’s registered title. For all purposes, it gave the appearance that the Disputed Land was part of the Applicant’s garden. For the purposes of the site visit, someone had temporarily placed pegs or stakes into the ground to indicate the line of the boundary between the Applicant’s registered land and the Disputed Land. I do not know whether the line shown by those markings was accurate and it is not necessary for me to make any finding about that. Nevertheless, I observed that (apart from those markings) there were no physical features within the enclosed area to differentiate between the part of the Applicant’s garden which was in her registered title and the Disputed Land.

12. On 22 July 2021, the Applicant applied to HMLR to be registered as proprietor of the Disputed Land. HMLR have given the Disputed Land a provisional title number: SY878917. Her application was made in form ADV1 under section 97 and paragraph 1 of Schedule 6 to the Land Registration Act 2002. In other words, she was claiming title to the Disputed Land on the grounds that she was in adverse possession of registered land under the post-2002 Act regime.

13. The Respondents objected to the application in October 2022 and the matter was referred by HMLR to this Tribunal in August 2023 under section 73(7) of the Land Registration Act 2002. The Legal Framework of the Application and the Objection

14. In brief terms, a person can make an application under Schedule 6 after they have been in adverse possession for more than 10 years ending with the date of the application (with certain exceptions which are not relevant here). Once the application is made and notice is given to the mandated recipients (including the registered proprietor of the disputed land), any recipient of notice can require that the application is dealt with under paragraph 5 of Schedule

6. In this case, the Respondents served a NAP1 form dated October 2022 in which they did require that the application be dealt with under paragraph

5.

15. In her application, the Applicant had indicated that she would rely on paragraphs 5(2) and 5(4) of Schedule 6, namely the First Condition and the Third Condition. The First Condition relates to estoppel. By the time of the hearing, the Applicant did not rely on any evidence or arguments relating to estoppel. She was relying solely on the Third Condition which reads: “The third condition is that— (a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application.”

16. Of those parts of the Third Condition, only (c) (reasonable belief) was effectively relevant during the hearing. The other parts of the Third Condition were all satisfied as follows: (a) Adjacent: In this case, there is no doubt that the Disputed Land is adjacent to the Applicant’s land. The Respondents accepted this in paragraph 14 of their skeleton argument for the hearing. (b) Boundary not determined: It is also clear that the boundary has not been determined under section 60 of the Land Registration Act 2002. The Respondents’ arguments to the contrary were based on a misunderstanding of what a section 60 determination is. They submitted that a survey allegedly commissioned by the Applicant’s ex-husband was a determination of the boundary. A section 60 determination is a specific procedure carried out by application to HMLR which has not occurred in this case. (d) Registered more than one year before the application: This was conceded by the Respondents in paragraph 30 of their skeleton. It is also clear from the register itself. The Issues

17. The Respondents’ objections which remained live issues in dispute at the hearing can be summarised very broadly as follows: a) The fact of adverse possession: They deny that the Applicant was in adverse possession for a period of 10 years ending with the date of the application. b) Reasonable belief: They deny that the Applicant reasonably believed for a period of at least 10 years that the land belonged to her.

18. At a telephone pre-trial review (“TPTR”), I invited the parties to consider the decision of the Supreme Court in Brown v Ridley [2025] UKSC

7. In a supplemental skeleton argument following the TPTR, the Respondent conceded (in my judgment correctly) that the period of 10 years of reasonable belief does not need to be immediately before the date of the application. But the Respondent has fairly pointed out that there does have to be a continuous 10-year period of reasonable belief, even if it is not immediately before the application.

19. In support of her claim that she has been in actual adverse possession for the requisite 10-year period, the Applicant relies on the following facts alleged in the ST1 which accompanied her application and in her subsequent statement of case: a) She moved into South Lodge in August 1998 b) The Disputed Land was already enclosed with the rest of the garden of South Lodge by or on behalf of previous owners. c) The Disputed Land has remained enclosed in that way such that it is only accessible from South Lodge or from one of the gates maintained by South Lodge. d) From 1998 until their divorce in about 2007, she and her then husband used the Disputed Land as part of their garden. After the divorce, the Applicant continued to do so alone. e) This included maintaining the area as a garden (such as landscaping and hedge trimming) with the help of a gardener, using the garden for children’s play (including building treehouses), family parties and bonfires. f) The Applicant at one time kept a metal garage on the Disputed Land.

20. The Applicant’s statement of case originally contained a claim that her predecessors in title had been in adverse possession since 1968. Such a claim may have involved considering the application under Schedule 12 of the 2002 Act. The Applicant conceded at the hearing that she did not have evidence for adverse possession at any time prior to 1998 and she decided to restrict her claim to the period since 1998.

21. Aa a result of all of the above, the substantive issues which I need to resolve in this application are as follows: a) Was the Applicant factually in possession of the Disputed Land from 1999 (or at least for some continuous ten year period since 1998) b) Did the Applicant have the requisite intention to possess? c) Did the Applicant reasonably believe that the Disputed Land belonged to her, for at least ten years of the period of adverse possession ending on the date of the application?

22. The first two of those issues are necessary to address in order to satisfy the test for adverse possession set out in Powell v McFarlane (1979) 38 P&CR

452. Brief History of the Applicant’s Title

23. Before addressing either of these two central questions, I shall set out the history of the Applicant’s title throughout the relevant period, since this has a bearing on each of the two central issues.

24. As noted above, South Lodge is registered under two titles, possibly because a county/administrative boundary runs through it. As far as I can tell, the two titles have at all relevant times been treated together and dealt with together. I shall therefore refer mostly to the Applicant’s registered title to South Lodge as a single entity.

25. On 7 July 1998, South Lodge was registered in the sole name of Paul Searle, who was then the Applicant’s husband. Mr Searle and the Applicant lived there together from 1998 until they were divorced in 2007. At around the time of the divorce and as part of the financial settlement in the divorce, the Applicant purchased South Lodge from Mr Searle. For some reason which was not clear, one part of the title to South Lodge was registered to the Applicant on 28 August 2007 (SY552125), but the other part (WSX117402) was not registered in her name until 1 March 2013. Since the latter date, the Applicant has therefore been the sole registered proprietor of both parts of the registered title to South Lodge.

26. To the extent that it is not supported by documents of public record (namely the register at HMLR), I accept the Applicant’s evidence concerning her title to South Lodge and her occupation of it.

27. In summary therefore, I find that: a) she has lived at South Lodge continuously since 1998 b) the whole of South Lodge was transferred to her by her ex-husband in 2007 and she was registered as the proprietor of part of it in 2007. c) she has been the sole registered proprietor of the whole of South Lodge since March 2013.

28. It can be seen from the illustrative plan above that SY552125, the part of South Lodge of which she has been registered proprietor since 2007, is adjacent to the Disputed Land. Factual possession

29. The Applicant’s case is that, since 1998, the Disputed Land has been continuously enclosed so as to give the appearance of being part of the garden of South Lodge. Throughout that period, it has been used by the Applicant and her family in the normal way a garden would be used.

30. The Applicant gave credible oral evidence to that effect. I have also seen videos and photographs of children playing and family activities in the Disputed Land. There was evidence of a family christening party. There was no indication on the ground to show any division between the registered South Lodge land and the Disputed Land either at the time of my site visit (other than the pegs placed there specifically for the purposes of the visit) nor in any of the historic photographs and videos I was shown. There was photographic evidence and the Applicant’s oral evidence that there had been a garage installed on the Disputed Land which had later been moved to another part of her garden.

31. Philip Reidy was called by the Applicant to give evidence. He is a friend of the Applicant who also does odd jobs for her in the garden. He has been visiting weekly or fortnightly since about 2004. He gave evidence that the Disputed Land has been kept clear throughout that time as a children’s play area and that it was always part of the garden of South Lodge. He had no reason to believe that it was in any way different from the rest of the garden.

32. Christopher Barnes was also called by the Applicant to give evidence. He is the Applicant’s half-brother. He was a frequent visitor to the South Lodge garden (about 10 times a year) since 1998. He remembered the climbing frame and the treehouse on the Disputed Land (which he called “the end of the garden”). He brought his own toddlers to play there, so he remembers carefully checking that the land was fully enclosed because of his concerns for the safety of the children. He was therefore able to testify convincingly that the Disputed Land was fully enclosed as part of the Applicant’s garden.

33. Other witness statements were served by the Applicant, but their makers were not called to give oral evidence. The most significant of those was her ex-husband, Mr Paul Searle. Unfortunately for the Applicant, due to a misunderstanding by her, his statement says very little – in particular, it gives no first-hand evidence of his actions or intentions or relevant beliefs. He confirms the history of title, identifies the Disputed Land and says that he supports the Applicant’s application. This unfortunate situation was, in my judgment, a result of the Applicant’s inexperience as a litigant in person and does not reflect negatively on her case or on the credibility of her evidence. During the hearing, I refused a request by one of the other witnesses to report a phone conversation they claim to have had with Mr Searle on the evening between day 1 and day 2 of the hearing. To allow the Applicant to rely on such hearsay and on the truth of its contents in those circumstances would have resulted in injustice and prejudice to the Respondent and, in any event, that hearsay evidence would have had little or no weight.

34. The Respondent challenged the Applicant’s evidence and witnesses in cross examination and in his submissions. The Respondents have owned their land since 2016, but it is a very large area of land, and they have had no reason to visit the part of it which is adjacent to South Lodge until this dispute arose. The Respondent therefore had no first-hand experience of the Disputed Land in relation to the period before this dispute arose in about 2021.

35. The Respondent invited me to place significance on the fact that the major structures in the garden of South Lodge for most of the period (including the date of the site visit) were not sited on the Disputed Land. He relied on this as evidence that there was insufficient factual possession. I do not agree. There was evidence that a metal garage was placed on the Disputed Land at some point since 1998. In any event, the Applicant does not claim that building on the Disputed Land was her sole (or even principal) act of possession. She relies primarily on acts of using it as a garden.

36. The Respondent also relies on the fact that the Applicant kept certain valuable items (such as a tractor-style lawnmower) in a shed which was not situated on the Disputed Land as evidence that the Applicant in fact knew that the Disputed Land was not hers. He relied on this as evidence that the Applicant (and her ex-husband before 2007) must have known that they did not own the Disputed Land and therefore deliberately avoided building or installing things there. In my judgment, having heard the evidence and visited the site, it seems to me that whether any particular structure was or was not on the Disputed Land at any particular time is a coincidence. There is no evidence that the Applicant’s decisions where to put any particular structure or store any particular object related to the unmarked dividing line between the South Lodge registered title and the Disputed Land.

37. Part of the Applicant’s evidence was that all the perimeter fences of the South Lodge garden (incorporating the Disputed Land) were already in place when she and her family moved there in 1998 and that she had not moved or replaced any perimeter fencing in the area of the Disputed Land nor had she removed any fencing nor installed any new fencing. In order to challenge that evidence, the Respondent relied on the HMLR survey of March 2022 (which had been commissioned as part of HMLR’s investigation into the Applicant’s application). A statement in that survey report dated most of the perimeter fencing of the South Lodge garden as being “15 years plus” in age, but dated the fencing of the easternmost perimeter of the Disputed Land as being “10 years plus”. The Respondent invited me to infer that this fence must be between 10 and 15 years old and that this therefore disproved the Applicant’s case that she had not replaced or installed any of the fencing since 1998. The Respondent invited me to infer from this that the at least part of the Disputed Land had been enclosed by an eastward expansion of fencing by the Applicant in the last 10-15 years. I do not accept that submission. The HMLR surveyors were not in Court to give evidence. It was therefore not possible to ask them any questions about their report. I cannot tell what criteria they use for assessing the age of fencing or how they choose to express the range of options for the age of fencing, and they could not be asked to explain it. They may or may not have made an individual assessment of the age of any particular fence. For example, they may have standard age ranges for particular types of fences or their materials. I simply do not know. It seems to me therefore that I cannot draw the inference the Respondent invites me to draw, in the face of credible oral evidence from the Applicant to the contrary.

38. The Respondent called witnesses who had seen the garden of South Lodge in the past. Elizabeth Dowle lived at North Lodge which is on the other side of the Wilderwick estate. She gave evidence by remote video link. Her late husband was a tractor driver for the entire Wilderwick Estate. She said that he used to comment to her that the garden of South Lodge was much smaller than the garden of North Lodge and was badly kept. Because her husband has passed away, it was not possible to ask him what he meant by this and in particular whether or not he saw the Disputed Land as having been incorporated and enclosed within the South Lodge garden. Mrs Dowle’s own evidence was very limited because she was only able to see the South Lodge garden herself on “a couple of occasions”. Both of those occasions were between 1976 and 1996 when her husband was working on a nearby farm and she brought him his tea when he was on the drive adjacent to the South Lodge garden and when South Lodge was owned by Mr & Mrs Anderson, predecessors in title of the Applicant. Otherwise, she had no reason to go there. For what it is worth, she formed her own view that the South Lodge garden at that time was small and badly kept. But she has not visited the area of South Lodge since 1996, so she was not able to offer any comparison between what she saw then and the state of the land now. In my judgment, her evidence was honest and clear, but none of it assists with the question of possession of the Disputed Land from 1998.

39. In my judgment, there is a wealth of credible evidence of factual possession of the Disputed Land by the Applicant and all other owners and occupiers of South Lodge continuously since 1998. The area was completely enclosed within and as part of the South Lodge garden throughout the period and she (and her family) used it in the normal way a garden would be used. Intention to possess

40. This is one of those cases where the intention to possess can be presumed from the fact of possession itself. There is no reason to believe that the Applicant’s possession of the Disputed Land was attributable to any other right or interest. The Respondent did not offer any evidence or submissions directed towards this issue. This issue is different from the question of Reasonable Belief. The Wheeler Application

41. It would be helpful at this point to mention a matter which may be relevant background to the Reasonable Belief issue. Until recently, the present application (REF/2023/0448) was being brought in tandem with another adverse possession application (REF/2023/0449 – “the Wheeler Application”). The Wheeler Application was brought by the same Applicant against Mr & Mrs Wheeler, the owners of Primrose Cottage, relating to land (“the Wheeler Land”) on the south side of the garden of South Lodge. This did not concern the Respondents to this application and the Wheeler Land is not adjacent to the current Disputed Land. The Wheeler Application was disposed by a settlement compromise before the hearing of this application. It is convenient to mention it at this point, because the Respondent partly relies upon the events surrounding and leading up to the Wheeler Application on the question of Reasonable Belief in connection with the Disputed Land in this case. Reasonable belief: the law

42. Did the Applicant reasonably believe that the Disputed Land belonged to her, for at least ten years of the period of adverse possession ending on the date of the application?

43. I have already outlined the impact of the decision of the Supreme Court in Brown v Ridley. In essence, the ten years of reasonable belief does not have to be immediately before this dispute arose. It can be any continuous period of 10 years.

44. In effect, this case turns on whether for at least a 10 year continuous period the Applicant held a reasonable belief that the Disputed Land belonged to her. This involves two elements (see eg paragraph 25 of the judgment of Etherton LJ in Iam Group Plc v Qamar Chowdrey [2012] EWCA 505): a) A subjective test: did she in fact honestly and actually hold that belief? And if so… b) An objective test: was it reasonable for her to hold that belief?

45. The subjective test is a question of fact to be considered on the evidence, which is dealt with below.

46. The objective test involves a consideration of how the law should approach the issue of reasonableness in this context. The view of HM Land Registry and the Law Commission on this issue was set out in “Land Registration for the Twenty-First Century” (Law Com. No.271) at para.14.52 in which they expressed the view that: “If X has been in possession of a parcel of land for 10 years or more in circumstances where the physical boundaries of the land suggest that it belongs to X, that fact of itself will, in practice, raise a rebuttable presumption that X had the animus needed to establish the third exception. It will then be incumbent on the registered proprietor to show that X knew or ought to have known that the parcel of land did not belong to him or her.”

47. This would mean that the objective belief can usually be inferred from the subjective belief. In other words, it would be up to the Respondent to prove that the Applicant’s belief was unreasonable. It would not be up to the Applicant to produce evidence that it was reasonable. See also Ruoff & Roper on Registered Conveyancing paragraph 33.047.

48. Such a challenge by a Defendant to a Third Condition adverse possession claim was considered by the Court of Appeal in the Chowdrey case (see above). The court below had found as a fact that Mr Chowdrey held an honest and actual (but erroneous) belief that the disputed land which appeared physically to be part of his property was in fact part of his title. The question on appeal was whether that belief was objectively reasonable. The Appellant, who was opposing adverse possession, argued that it was not reasonable for Mr Chowdrey to hold that belief, because reasonably competent solicitors acting for him when he purchased the land would have known that the disputed land was not part of his title and should have informed him of that.

49. Etherton LJ said in that case at paragraphs 26 to 28: “26. I do not accept the central proposition, advanced skilfully by Mr Evans, that the issue of reasonableness turns on the knowledge which the respondent's solicitors in 1993 would or should have had if they had been reasonably competent. There was no evidence before the Judge as to what those solicitors did or thought about the matter. Before the Judge, and in the skeleton arguments for the purpose of this appeal, the appellant criticised the failure of the respondent to produce the conveyancing file. It appears, however, that the firm of solicitors acting on the 1993 transfer on the respondent's behalf no longer exists, and it is certainly almost impossible now to locate the conveyancing file. Accordingly, precisely what those solicitors asked and knew is not before the court as a matter of evidence.

27. In my judgment, the issue is not the knowledge of a reasonably competent solicitor acting for the respondent in 1993. We are not here concerned with knowledge in the context, which frequently arises, of imputing an agent's knowledge to the principal. We are here concerned with the requirement as to the reasonable belief of a particular person. In this case, it is the respondent, but generally it is the person who is seeking to apply for registration of title by virtue of adverse possession. What is in issue therefore is not imputed knowledge but rather whether that particular person – here the respondent – was reasonable in holding the belief that he or she did in all the circumstances. That can involve a question as to whether the respondent should have made enquiries of his solicitors or elsewhereas to whether, notwithstanding his purchase of the freehold of No. 26a in 1993, the disputed property was in fact comprised within his paper title.

28. On the basis of the facts found by the Judge there was nothing to put the respondent on notice in 1993 that he needed to raise with his solicitors whether his title to No. 26a included the disputed property, of which he had enjoyed exclusive possession without challenge or question from the time he first acquired an interest in 1990 and the access to which obtained solely from No. 26a. That, in my judgment, is the end to the ground of appeal based upon the respondent's inferred knowledge derived from the assumed conduct of what would have been hypothetically competent solicitors.”

50. I have highlighted in bold the section which I regard as containing the rationale of the Chowdrey decision on this issue.

51. It follows that the Respondent in this case needs to show that something actually came to the Applicant’s attention which would have prevented her belief from being objectively reasonable. It is not sufficient for him to prove that her former solicitors (or other professional advisers) did know or would have known. Nor is it sufficient for him to show that professional advisers acting for her or her husband should have informed them.

52. Chowdrey and the Law Commission Report were not cited during the hearing of the present case. After the hearing had concluded, I gave the parties the opportunity to make written submissions on them. The Applicant responded simply by saying: “I thank the Judge for identifying relevant legal sources which had not previously been mentioned. They seem highly relevant.”

53. The Respondent filed written submissions in which he submitted that: (a) according to Chowdrey, what matters is the content of the information received by the squatter and what a reasonable person in the squatter’s position would make of it. (b) according to the Law Commission Report, the intention was to avoid rewarding deliberate trespassers and to restrict this Condition to genuine boundary mistakes in which features on the ground and information received by the squatter (as interpreted by a reasonable person) would be relevant.

54. The Respondent also drew attention to the following statement of Lord Briggs in Brown v Ridley at paragraph 19: “the obtaining of registered title as the result of adverse possession should not be available to those squatters who know that they are in possession without any right to do so: i.e. who know that they are trespassing. The effect of the requirement that the belief be reasonable rather than just genuine adds an element of objectivity to the enquiry, which makes an assertion of reasonable belief by S more easily tested by reference to objectively ascertainable facts and documents. This affords some added protection to O, and is likely to avoid rewarding a squatter whose belief that he is not trespassing is not objectively justifiable, even if genuine.” And this passage at paragraph 28: “It needs also to be borne in mind that the loss of the former reasonable belief as to ownership may come about from information provided by a third party, at a time when there appears to be no dispute with the relevant neighbour about the relevant boundary. In the present case the FtT judge found that the Ridleys had lost their reasonable belief in the course of making a planning application for permission…”

55. The Respondent also sought in his written submissions to draw fine distinctions between the facts in the Chowdrey case and the evidence in the present case. I will not address those, because I will be applying my understanding of the rationale behind the Chowdrey decision, rather than comparing and analysing its facts. Reasonable Belief: application to the facts of this case

56. On the issue of Reasonable Belief, the first question to consider is: whose reasonable belief is relevant? For this purpose, the history of title is important. Before 2007, the Applicant did not have legal title to any relevant land and there is no evidence that she had any share in the beneficial interest of South Lodge at that time. In paragraph 5(4)(c) of Schedule 6, the question is whether “the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him” (my emphasis in bold).

57. It seems clear to me that the Applicant cannot have believed at any time before 2007 that the Disputed Land “belonged to” her. The most she could have believed would have been that the Disputed Land belonged to her then husband, not to her. It seems to me that the effect of the words “or any predecessors in title” in paragraph 5(4)(c) is that the current Applicant can (if relevant) rely on the reasonable belief of her predecessor in title for either the whole or part of the requisite 10 year period of Reasonable Belief. So the Applicant in this case can rely on Mr Searle’s state of mind for any period between 1997-2007 in which he reasonably believed that the Disputed Land belonged to him.

58. But, as I have noted above, Mr Searle did not give oral evidence at the hearing and the content of his witness statement did not address this issue at all. Despite this, it seems to me that I can draw some inferences as to his state of mind from other evidence. In some sense, a statement by Mr Searle of what he says he believed between 1998 and 2007 may not have been that helpful anyway. Courts and tribunals usually give little weight to a witness’s statement about his own state of mind. The evidence from which I can draw inferences about Mr Searle’s state of mind is that he used the Disputed Land as part of his garden in the same way that the Applicant has done. I know that because the Applicant was able to give first-hand evidence of that (even though she was not an owner of South Lodge at the time). The Applicant’s evidence was also that Mr Searle did not say anything to the Applicant (either before or after 2007) that gave the impression that he did not own the Disputed Land or did not believe that he owned it. That last piece of evidence is also important, of course, for the Applicant’s own state of mind.

59. The Respondent drew attention to evidence of a period in about 2003 when Mr Searle entered into negotiations with the Wheelers about buying (all of part of) the Wheeler Land. The Respondent suggested in submissions that Mr Searle must have looked at plans at that time which may also have shown that the Disputed Land was not within the title to South Lodge.

60. Overall, there is very little evidence about what Mr Searle believed about title to the Disputed Land between 1998 and 2007. Whether Mr Searle saw plans which would have alerted him to his lack of ownership of the Disputed Land is pure speculation on the part of the Respondent. I therefore have no evidence that he actually received information about the paper title from a third party nor that there was any situation in which he should have enquired about it. The Wheeler Land was on the other side of the South Lodge garden and does not adjoin the Disputed Land. It is possible that a plan which showed the Wheelers’ title also showed the Respondent’s title to the Disputed Land, but it is equally possible that it did not. It is similarly possible that, even if the Respondent’s title to the Disputed Land was incidentally shown on a Wheeler plan, Mr Searle simply did not notice. Plans are complicated and have lots of different markings on them. The Respondent also relied on evidence that Mr Searle had “walked the boundary” with the Wheelers some time before 2007. The Applicant denied that she had been a part of that event. In addition, there was no evidence that they would have walked anything other than the area of land disputed with the Wheelers. There is no evidence (and no reason to infer) that they would have walked any part of a boundary in the location of the presently Disputed Land. If I had to make a decision about Mr Searle’s state of mind on the evidence available, on balance I would say that his use of the South Lodge garden and the fact that he said nothing about the Respondent’s title to the Applicant leads me to conclude that he genuinely and reasonably believed that the Disputed Land was part of his title to South Lodge.

61. Mr Searle’s belief is however relevant only for the period before 2007. After that date, the Applicant herself had registered title to at least a part of South Lodge which abuts the Disputed Land. Therefore, from 2007 onwards it is the Applicant’s belief which is relevant.

62. On this issue, the Applicant says that she did not know that the Disputed Land was not her land. She said that before 2007, she was busy raising their small children. So her ex-husband had dealt with all conveyancing and title documents together with all negotiations with the Wheelers. After 2007, she says that she relied upon professionals (solicitors, mortgage brokers and planning consultants) to deal with legal and administrative matters to do with South Lodge. She says she did not examine any of the title documents or plans on her own initiative and none of her professional advisers drew her attention to any anomalies on plans showing that part of her garden was not in her ownership. She says that after 2007, she became a single mother, which increased her childcaring burden. She explained that even though the children are now grown-up, her youngest (now aged about 20) suffers from autism and requires significant continuing care and attention. The Applicant’s evidence was thoroughly tested by the Respondent in cross examination. On balance, I found the Applicant to be credible and honest and I accept her evidence.

63. It is fair to say that the Respondent’s case is based entirely on documents and pointing out features of the land itself. The Respondent has no first-hand knowledge of South Lodge or the Disputed Land from a time before this dispute arose in about 2021. He relies on a number of documents from between 2007 and 2021 from which he invited me to draw the inference that the Applicant must have known that she did not own the Disputed Land or that it would not have been objectively reasonable for her to continue to belief that she did not own it.

64. The Respondent submits that the following third-party sources of information were conveyed to the Applicant and/or Mr Searle and that these sources of information would have deprived them of any former reasonable belief they may have had as to ownership of the Disputed Land: a) A plan dating from about 2003 – referred to throughout the hearing by the Respondent as a “survey commissioned by” the Applicant’s ex-husband. This was simply an assertion by the Respondent about its origin. Although the plan was among the documents disclosed by the parties, there was no evidence about its origin. There was no evidence that it had been seen by any particular person at any time and no evidence that it had been commissioned by anyone in particular. It was also not, as far as I could see, a “survey” in any meaningful sense. It was simply a plan which showed the extent of the title to South Lodge (among other things). b) Documents which would have been generated and exchanged between the parties to the divorce and their professional advisers during the transfer of title into the Applicant’s sole name and the execution of a related mortgage as part of her divorce in about 2006 or 2007. The Respondent says that the HMLR filed plans and other deed plans which would have been examined would have shown the true registered boundary. c) Plans created and used as part of the Applicant’s planning application in 2012/2013. These were in the bundle and did show that the Disputed Land was not part of South Lodge. d) Legal advice received in relation to the Wheeler Land in 2013. I saw a letter dated 26 June 2013 from the Applicant’s them solicitor, Thomas Eggar, about the Wheeler Land. It is said to have enclosed an aerial photograph, but that was not included with the copy I saw. It did not enclose a plan. It related to the Wheeler Land and did not refer at all to the Disputed Land. e) Documents relating to the execution of a remortgage by the Applicant in 2019.

65. It is important to make clear that some of these categories relate to documents which were not produced in court. In particular, there were no conveyancing and mortgage documents from 2006-2007 and 2019 produced in evidence. It is common ground (and shown on documents in the public record) that those transactions did take place. The Respondent simply invited the Tribunal to infer that documents showing the true registered extent of South Lodge would have been exchanged between professional advisers and representatives at the time.

66. Applying the law as set out above, I have concluded that none of these categories of documents give rise to a finding that the Applicant had knowledge as a result of which her belief in title to the Disputed Land was no longer reasonable. She gave evidence that she did not actually see any of them. That is credible because there is no evidence of anything which she did know which should have alerted her to the possibility of a problem with the Disputed Land. There is nothing she did see or hear which would have required a reasonable person in her position to make further enquiries. The fact that her conveyancing solicitors, mortgage lenders and planning consultant either saw or produced plans which showed that the Disputed Land was outside her title did not affect her state of mind and did not affect the reasonableness of her state of belief. It is also fair to say (although it may not necessary to find) that there was no reason for any of those professionals to have spotted the anomaly. Conveyancing solicitors, mortgage lenders and their advisers usually do not visit the land itself. So there would be no reason for them to notice that there was a difference between the HMLR filed plan or any deed plan and the physical features on the ground. The planning consultant would have visited the land, but he was concentrating on the area of the proposed works (which was nowhere near the Disputed Land) and he was not advising on questions of title.

67. The Respondent also sought to rely on evidence that the Applicant is a person with her own business and that she is intelligent and capable of asking relevant questions. This submission is capable of being applied to two different parts of the Reasonable Belief issue: a) It could be said that these alleged qualities of the Applicant make it impossible that she cannot have known the true title status of the Disputed Land, because she must have made the kind of enquiries that a person of her qualities would have made. I am not persuaded that such an argument in this case was capable of negating the credible evidence to the contrary given by the Applicant. b) It could also be said that these alleged qualities of the Applicant make it unreasonable for her to have continued to believe that the Disputed Land belonged to her. In other words, she may have continued genuinely to believe it, but that was the result of a sort of wilful blindness borne of a failure to make the kind of enquiries which a person of her qualities would have made. I shall consider that argument below.

68. I am not persuaded by these arguments. There was no evidence that she had specific level of education or specialist knowledge or experience of matters relating to property title or boundaries. In the absence of that, it seems to me that the Respondent’s argument effectively amounts to an assertion that no educated, intelligent business person is capable for having a reasonable belief so as to satisfy the Reasonable Belief condition in Schedule

6. That is not my understanding of the law.

69. As a result of all of the above, I have therefore decided that from 2007 onwards, for a period of at least ten consequent years, the Applicant did reasonably believe that the Disputed Land belonged to her. Conclusion

70. It follows that the Applicant’s application to HMLR should succeed and I am directing the Chief Land Registrar to allow the application as if the Respondents’ objection had not been made. Costs

71. According to paragraph 9 of the Practice Direction made under the Rules, costs normally follow the event. In this case, I am minded to make an order that the Respondents should pay any costs incurred by the Applicant since the date when this matter was referred to the Tribunal. I am also minded to carry out a summary assessment of the Applicant’s costs on the standard basis.

72. If the Applicant wishes to make a costs application, then she must file at the Tribunal and serve on the Respondents by 4 pm on 29 October 2025 a schedule of the costs she has incurred since the date when this matter was referred to the Tribunal.

73. If either party has grounds to submit that I should make a different order on costs, then they should file at the Tribunal and serve on the other party, by the same date, submissions explaining what the costs order (if any) should be made and why. Dated this 1st day of October 2025 Judge Timothy Cowen By Order of The Tribunal Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal. The application for permission to appeal must arrive at the First-tier Tribunal within 28 days after the tribunal sends the decision to the person making the application. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).