[2025] UKUT 144 (LC)

Mr Iwaskiewicz’s argument in the FTT was that a mistake must have been made on first registration of his title. At the hearing in the FTT Mr Feldman in his skeleton argument sought also to argue that Mr Iwaskiewicz had been in adverse possession of the disputed land. However, he conceded that he could not pursue the adverse possession argument since it had not been the basis of the application to HM Land Registry. So only mistake was in issue. Mr Iwaskiewicz produced the following documents of title to number 4:

Mr Iwaskiewicz gave evidence that the frontage of his property together with the disputed land measures 65 feet, and the FTT accepted that.

No document of title to number 4 more recent than 1946 was produced. No information was offered as to when first registration took place; nor was the FTT told when registration became compulsory for properties in Bedford. It is apparent from the register of title that land at the rear of the property was acquired by the owner of number 4 in 1996 by transfer not by conveyance, and therefore it can be inferred that title to the land at the rear was registered by that date; but it is not known whether the rest of number 4 was registered by then. It was not suggested by Mr Iwaskiewicz that he was the first registered proprietor.

Mr Iwaskiewicz also produced documents relating to number 2. A conveyance in 1929 contains a plan “for the purposes of identification” which shows the property having a zig-zag shape, consistent with the disputed land not being included. By a deed dated 13 January 1971 the trustees of the neighbouring Methodist church granted a right of way, and an easement to connect to drains, to the owner of number 2; the plan to that deed again appears to show a shape consistent with the disputed land not being part of number 2. There is reference on the register of title to number 2 to a conveyance dated 9 April 1973, but that conveyance was not produced to the FTT. A print-out of a Zoopla “property history” for number 2 in 2011 did not mention that it had a garage.

Mr Iwaskiewicz offered no information as to when title to number 2 was registered; nor did Mr Suhitharan.

The FTT found as a fact that Mr Iwaskiewicz used the garage for storage and parked on the drive throughout his ownership until Mr Suhitharan prevented him. The FTT made no finding as to whether that use was opposed at any time before 2019.

Mr Suhitharan has never lived at number 2 although he has stayed there on occasion; it has been tenanted throughout most of his ownership. His case in the FTT was simply that he bought number 2 in 2019 and that the title to the property included the disputed land. When he found Mr Iwaskiewicz parking on the drive in 2019 he took steps to prevent that, first in correspondence and then by installing a retractable bollard in May 2019. He referred in his witness statement to having inspected the garage; in its decision the FTT found that he had not been into the garage before the site visit conducted by the FTT, and had not been aware of the side door in Mr Iwaskiewicz’s garden.

Mr Suhitharan pointed out that the 1973 conveyance, referred to on his register of title, had not been produced, and that it might be that the disputed land became part of number 2’s title by purchase from number 4 at that date.

Mr Suhitharan’s predecessor in title, Ms Ruffhead, made a witness statement in which she said that she bought number 2 in 2007. She regarded the drive and garage as hers but said that Mr Iwaskiewicz protested when she parked there, and that eventually she stopped doing so in order to avoid conflict with him. She said the garage was full of items left behind by her predecessor (who used to rent out the property), but that she did not go into the garage to clear it for fear of reprisal by Mr Iwaskiewicz. Ms Ruffhead attended the hearing, but did not give evidence and was not cross-examined, because – according to the FTT’s decision – her evidence was regarded as relevant to the adverse possession argument, which was not pursued. The FTT therefore made no finding on her evidence.

On the basis of the documents of title, and of its finding of fact that Mr Iwaskiewicz made use of the garage for storage and the drive for parking throughout his ownership of number 4, the judge in the FTT accepted that the at the time of the 1903, 1944 and 1946 conveyances number 4 had included the disputed land and that the plans to the 1929 conveyance and to the 1971 deed of easement did not show the disputed land within number 2’s title. He noted the estate agent’s particulars in 2000 which he said indicated that the vendor and the estate agent believed that the disputed land belonged to number 4, and a Zoopla property history in 2011 which did not mention the garage or drive in the context of number 2. He noted that number 4 in 2000 had no other off-road parking, although Mr Iwaskiewicz has since created an additional space by removing a wall and a tree from the space between the disputed land and the house. He found that Mr Iwaskiewicz had used the disputed land since his purchase and has access to the garage through a door into his garden. He said “I am, just, persuaded that on the balance of probabilities the Disputed Land was included in number 2’s title by mistake”.

The judge said that it was not possible to say when or how the mistake was made, “but these are not questions I have to answer”. He added that he had considered whether at some unknown point the owner of number 2 bought the disputed land from the owner of number 4 “but there is nothing that remotely suggests such a transaction took place and the Applicant’s evidence from 2000 is to the contrary.”

The judge then turned to paragraph 6 of Schedule 4 to the 2002 Act, and considered whether Mr Suhitharan was in possession of the disputed land. He found that he was in possession of the drive but not of the garage; and there is no appeal, from either party, against either of those findings of fact. He therefore concluded that the provisions of paragraph 6(2) were not relevant, that there was power to order alteration of the register, and that pursuant to paragraph 6(3) he must do so unless exceptional circumstances justified not making the alteration. He found that there were no exceptional circumstances and directed the registrar to give effect to Mr Iwaskiewicz’s application as if Mr Suhitharan’s objection had not been made.

However, he went on to consider paragraph 6(2) in relation to the driveway only, in case he was wrong in finding that he did not have to apply paragraph 6(2) in relation only to that part of the disputed land. He found that Mr Iwaskiewicz had not shown that it would be unjust not to alter the register, because when he bought number 4 in 2000 he and his conveyancer had the opportunity to ensure that what he bought included all the land that was advertised and that he expected; moreover, he now had another parking space next to the disputed land, and so he would not be left without a parking space if his application failed in relation to the drive.