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Practice and procedure
Queen's Bench Division
7 November 201 2
Eady J
[2012] EWHC 3129 (QB)
[2013] 5 EG 98
Practice and procedure - Adverse possession claim - Land Registration Act 2002 - County court claim for anti-social behaviour order against tenant - Claim alleging trespass - Tenant claiming rights to land by adverse possession - Para 1 of Schedule 6 to 2002 Act - Whether county court entitled to determine adverse possession issue - Whether proper to adjourn proceedings pending outcome of tenant's application to Land Registry for registration of possessory title based on adverse possession - Whether such application precluded by para 1(3)
The defendant was the tenant of a ground-floor flat under a secure tenancy granted by the claimant landlord in 2000. His demise included part of the rear garden of the premises and a right of way over an adjacent passageway, which right was enjoyed in common with the claimant and the owners and occupiers of the adjoining properties. In June 2011, the claimant applied for an antisocial behaviour injunction against the defendant, under the Housing Act 1996, complaining that he had impeded access over the passageway by installing a lock on the gate and erecting greenhouses, which, along with a gazebo, trespassed on the garden of the first-floor flat and the passageway.
In his defence, the defendant claimed to have acquired rights by adverse possession. A few weeks before the trial, the defendant sought an adjournment on the ground that he had just made an application to the Land Registry, under para 1(1) of Schedule 6 to the Land Registration Act 2002, to register a possessory title to the relevant pieces of land based on more than 10 years' adverse possession.
The county court judge held that the defendant's Land Registry application was precluded by para 1(3) of Schedule 6 as being made by a "defendant in proceedings which involve asserting a right to possession of the land", within the meaning ofthat provision. The judge adjourned the trial for other reasons and gave further directions relating to the court's determination of the issue of adverse possession.
On appeal against that order, the appellant contended that: (i) the court had no direct role in determining the issue of adverse possession...