An appeal against a finding on credibility can succeed where the decision is irrational or there is an error of law.
The Upper Tribunal (Lands Chamber) has allowed an appeal against a decision that the appellants had not established title to land by adverse possession in Rowlands v Bishop [2023] UKUT 102 [LC).
The case concerned parts of the garden of Woodlands in Haverfordwest, Pembrokeshire, owned by the appellants, which they treated as their own since they purchased the property in 1996. The land formed part of the registered title of the neighbouring property, Johnston Hall, owned by the respondents. The appellants applied to be registered as proprietors of the land by adverse possession under Schedule 6 to the Land Registration Act 2002 following the respondents’ challenge. The First-tier Tribunal found the appellants had established the period of requisite adverse possession but had not established that the condition in paragraph 5(4) of Schedule 5 was satisfied and so the application failed.
The condition in paragraph 5(4) requires that: (a) the application land is adjacent to land belonging to the applicant; (b) the exact line of the boundary has not been determined under section 60; (c) for at least 10 years ending with the date of the application, the applicant reasonably believed the land belonged to him; and (d) the estate to which the application relates was registered more than a year prior to the application. All elements were agreed to be satisfied save for (c).
The FTT decided an agreement reached between the parties’ predecessors in title and relied upon by the appellants as fixing the boundary at the time of their purchase was no more than an informal conversation. It did not create an interest in land and could not found a reasonable belief that it did so. The FTT also did not believe the first appellant when he said he thought all the land within a post-and-wire fence which reflected the agreement was his.
The FTT had no direct evidence of the agreement reached on which to make a finding as to its legal effect. Irrespective of its legal effect, it could still found a reasonable belief. The first respondent was told of an agreement and could see the land was fenced, occupied and cultivated in line with the agreement. The FTT’s reasons for doubting the first respondent’s credibility were flimsy and insufficient to justify a finding that he was lying. The Upper Tribunal substituted its own decision that the condition was satisfied.
Louise Clark is a property law consultant and mediator
