Vinesh Anilkmar Kotecha & Anor v Peter Quentin Carroll & Anor

1. The matter that has been referred to the Tribunal is the Applicants’ ADV1 application to be registered as proprietor of land currently within the title of the Respondents pursuant to Schedule 6 of the Land Registration Act 2002 (“Schedule 6”).

2. The Applicants, who are brothers, are the registered proprietors of 247 Hearthcote Road, Swadlincote (title numbers DY86134 & DY174406; “247”). The Respondents, who are husband and wife, are the registered proprietors of the neighbouring property 249 Hearthcote Road (title numbers DY112453 & DY359282; “249”).

3. The subject of the Applicants’ application is a triangular parcel to the front of the properties (“the Disputed Land”). The Disputed Land is coloured blue on the Notice Plan, extract below. Notice Plan

4. The Disputed Land is approximately half of a larger triangular parcel which forms registered title number DY359282 (“the Triangle”). The Triangle used to form part of DY174406, as can be seen on the title plan to DY174406, extract below, but was removed on 5 th March 2003. The Triangle

5. The background to this, in broad terms, is as follows. When the Respondents were purchasing 249, they were keen to sort out the front boundary with 247. This led to the then owner of 247, Clive Collins, selling the Triangle to the Respondents’ predecessors in title, the Oakdens (“the Transfer Out”). The Oakdens then sold it on to the Respondents, after they had sold them the main parcel of 249.

6. The reason for sorting out the front boundary was that the physical features on the ground did not match the title plans. More particularly, there was a fence along the solid line bisecting the Triangle (“the Fence”). The kink in the line of physical features is illustrated by the photograph below: compare the green vegetation parallel to the house on 249 with the more blue-green vegetation angled to the west near the road. Aerial view

7. It is not in dispute that Mr Collins, initially on his own and latterly in concert with the Respondents, was involved in protracted discussions about the sale of 247 (and 249) for development. However, ultimately, no deal was reached.

8. Mr Collins sold 247 to the Applicants in December 2020; they were registered as proprietors on 23 rd August 2021.

9. The dispute arose at around this time, when the Respondents informed the Applicants – who were carrying out work at 247 – that they would be fencing their front boundary in a straight line to the road. They went on to place stakes along what they asserted was the boundary, as shown on the photographs below (the one on the left taken looking north away from the road, the one on the right taken looking south towards the road). The Disputed Land is approximately the area in between the stakes and the Fence. Disputed Land 2021

10. The Applicants’ overarching position is that only half of the Triangle should have been transferred out of DY174406, that is, that the boundary of the land comprised in the Transfer Out was to correspond with the Fence. In terms of this application, they say they can demonstrate adverse possession of the Disputed Land, as it was always treated as part of 247’s garden. Preliminary matters

11. The Tribunal’s jurisdiction is limited to determining the matter that has been referred to it by HM Land Registry. Here, that is the Applicants’ ADV1 application dated 5 th August 2022. The bundle also contains an AP1 application for alteration of the register, signed by the Applicants’ solicitors on 9 th August 2022, that is, a few days after the ADV1. This application has not been referred.

12. Counsel for the Applicants argues that it is an administrative oversight that the AP1 has not been referred, going so far as to say that it is “ inevitable ” it will be referred, and that the proceedings have always dealt with both. He argued that it would be better for the matter to be adjourned so that the two applications could be dealt with together, thus avoiding the possibility of inconsistent findings and the additional expense of a further set of proceedings. He also prayed in aid the unavailability/non-attendance of the Applicants and concerns over the one day listing.

13. I do not agree it is an administrative oversight that the AP1 has not been referred. The available evidence suggests that the AP1 has not in fact been accepted by HM Land Registry. There is a letter from HM Land Registry dated 18 th August 2022, which states, “ Whilst you have also made an application for potential alteration on the basis of “ a true construction of the 2002 Transfer” to the Oakdens it appears from our records that the title plan of DY359282 does reflect the land edged red on the plan to that Transfer although I appreciate your client’s claim is that did not reflect the intention at the time… We will, however revert to you again once the surveyor has inspected the site ”. I was not provided with any further correspondence relating to the AP1. The Respondents confirmed that, whilst they had received the ADV1 and NAP from HM Land Registry, they had not received the AP1.

14. Moreover, this analysis makes sense. The Applicants seek by their AP1 to argue that the register contains a mistake because the Transfer Out has been incorrectly construed. HM Land Registry expressed the view that, essentially, there has been no such mistake – the title plan to the Triangle matches the land edged red on the plan to the Transfer Out, and there is no room for arguing that it only transferred half. Looking at what appears to be the plan attached to the Transfer Out (although this is not certain – Mr Collins was not sure that it was his signature on the plan), it is easy to see how this conclusion was reached. Probable plan to Transfer Out

15. Counsel for the Applicants referred to paragraph 6-133 of Megarry & Wade’s The Law of Real Property (10 th ed.) in support of his submission that mistake under Schedule 4 of the Land Registration Act 2002 should be widely interpreted so as to include the mistake alleged by the Applicants. The mistake alleged appears to be that, had the registrar known the (alleged) intention of the parties, they would not have registered the Transfer Out as they did. This is not one of the examples of mistake listed in that paragraph, nor is it analogous with any of them. Rather, it seems to me it is more akin to registration pursuant to a voidable disposition, which is not a mistake, because the registrar would still have taken the same administrative act of registering in accordance with a valid disposition. Here, the registrar registered the Transfer Out in accordance with its express terms, as they were under a duty to do.

16. It seems to me the Applicants’ real claim is that the Transfer Out did not reflect the intention of the parties, the proper application for which would be an application to rectify the Transfer Out. That is not the same as an application to alter the register, although it is right that both applications would often be made in tandem.

17. In any event, even if it were an administrative oversight, that is something for the Applicants to take up with HM Land Registry: without a referral, the Tribunal is without jurisdiction. The Tribunal might in some circumstances be willing to treat an AP1 as including an application to rectify a document, but I cannot see how it can treat an ADV1 as including an AP1.

18. Moreover, I do not accept that the proceedings have always dealt with both. The Applicants’ statement of case refers to the existence of the AP1, but does not plead a case as to alteration, not least because there is no reference to Schedule 4 of the Land Registration Act 2002 (and insofar as it sets out Mr Collins’ belief about what was included in the Transfer Out, this is explicable by reference to the requirement for reasonable belief). The reality is that, whilst Counsel for the Applicants’ skeleton argument puts alteration front and centre, the proceedings until that point were focused on the ADV1.

19. The danger of inconsistent findings and the additional expense of a further set of proceedings have to be weighed against the delay that would be caused (very probably significant given the issues with the AP1), and the costs and resources that would be wasted, by an adjournment. It is seemingly only at the last moment that the Applicants have recognised a potential issue with the proceedings as they wish to pursue them. That is on them. The application to adjourn has come far too late.

20. Counsel for the Applicants also referred to the inability of the Applicants to attend the final hearing “ through no fault of their own ”. This was, in effect, repetition of an earlier written application to vacate, which I refused. I adopt the reasons given for the earlier refusal: in particular, I did not accept that their non-attendance was through no fault of their own; they would be able to participate, through their legal representatives; and they would be able to rely on the oral evidence of Mr Collins, their own direct knowledge being somewhat limited. For completeness, I also reject the submission that the trial would be unfair if it were to proceed, for the same reasons.

21. Finally, I was satisfied that one day would be sufficient, at the very least for oral evidence to be heard. As it turns out, it was sufficient for submissions as well.

22. For all these reasons, the application to adjourn was refused and the final hearing proceeded on the ADV1 only. Principles

23. There is no dispute as to the relevant principles, which I summarise here.

24. The Applicants’ application is made under paragraph 1 of Schedule 6 to the Land Registration Act 2002 . They must demonstrate that they and their predecessors have been in adverse possession of the Disputed Land for the period of ten years ending on the date of the application, that being 5 th August 2012 to 5 th August 2022 (“the Relevant Period”). To show adverse possession, they must demonstrate both factual possession of, and an intention to possess, the Disputed Land for the Relevant Period.

25. Factual possession “ signifies an appropriate degree of physical control… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstance, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so" [Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470-1, cited with approval in J A Pye (Oxford) Ltd v Graham [2003] UKHL 30 ].

26. An intention to possess is the intention “ to exclude the world at large, including the owner with the paper title… so far as is reasonably practicable and so far as the processes of the law will allow” [Slade J in Powell at 471-2, cited with approval in Pye ].

27. The evidence of factual possession will often be sufficient to demonstrate the intention to possess, but this will not always be so: “ It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess ” [Lord Hutton in Pye at paragraph 76].

28. In those cases, an applicant must make it “ perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can ” [Slade J in Powell at 472]; he “ should be required to adduce compelling evidence that he has the requisite [intention to possess] ” [at 476].

29. The Respondents gave a counter notice requiring the application to be dealt with under paragraph 5, which effectively adds further conditions that the Applicants must meet for the application to succeed. The Applicants rely on the conditions in paragraph 5(4), commonly referred to as the boundary condition. The issue between the parties here is whether the Applicants can show that they reasonably believed that they owned the Disputed Land for a period of ten years prior to the application (paragraph 5(4)(c)).

30. I note for completeness that Counsel for the Applicants’ skeleton invites the Tribunal to find that the Respondents’ conduct gives rise to various estoppels, and also reserves the right to pursue proprietary estoppel (albeit not before the Tribunal, which he acknowledges does not have jurisdiction). I am not sure where it is said these estoppels fit into the ADV1 analysis, perhaps that the Applicants can rely on paragraph 5(4)(a). However, that is not part of their pleaded case, and I do not consider it further. Evidence

31. On behalf of the Applicants, I heard oral evidence from Mr Collins and read the witness statements of the Applicants, who did not attend. In terms of the Relevant Period, Mr Collins’ evidence relates to the first 8 years or so, and the Applicants’ the last two years or so, their purchase being in December 2020.

32. On behalf of the Respondents, I heard evidence from the First Respondent and read the witness statement of the Second Respondent, who did attend, but was not cross-examined on the agreed basis that her evidence, which echoed her husband’s, was not to be taken as admitted.

33. I have also considered the trial bundle, which runs to a wholly unnecessary 1119 pages: many documents are duplicated and/or irrelevant.

34. Perhaps unsurprisingly, given the background to the application, much of the evidence focused on the Transfer Out, and to a lesser extent the development negotiations. However, this evidence is relevant, if at all, to the question of reasonable belief. Before getting to that, the Applicants must demonstrate on the balance of probability that they/their predecessor have been in adverse possession of the Disputed Land for the Relevant Period.

35. The Applicants’ case as to adverse possession is that the Disputed Land has always been treated as part of 247’s garden, notwithstanding the Transfer Out. More particularly, that the Disputed Land was only accessible from 247, was only accessed by 247, and was maintained by 247. It is necessary to consider the evidence relating to these three points in the round as there is a certain amount of overlap. I set out the most pertinent evidence as follows.

36. There is no dispute as to the existence or location of the Fence, which, on the face of it, would appear to prevent the Respondents from accessing the Disputed Land. However, the Respondents aver that, when the Triangle was transferred, they installed a gate (“the Gate”, visible next to the black bin in the photograph below) to allow access. This was after they had replaced some of the fencing between the properties to ensure that 249 was dog-proof. They say they were intending to relocate the Fence, but decided not to do so immediately given the negotiations about selling the land for development. The Gate (249 side)

37. Both Mr Collins and the Applicants aver that they were unaware of the Gate until the Applicants removed vegetation when they began carrying out works to 247. It is accepted that it was the Respondents who installed it. Indeed, it was suggested that it was done surreptitiously, which the First Respondent did not accept.

38. Mr Collins and the Applicants further aver that, even with the Gate, access would not have been possible due to the vegetation: Mr Collins’ written evidence was that shrubbery covering the Fence had always been there, and in oral evidence he described the Gate as a “ gate to Narnia” that you would never have opened. There is, however, no photographic evidence of the Disputed Land during the Relevant Period that suggests that access would not have been possible.

39. The First Respondent maintains that they could, and did, access the Disputed Land, for cutting back shrubs, maintaining the Fence, clearing rubbish that was thrown over from the pavement by patrons of the nearby pub and local students, and retrieving footballs.

40. Mr Collins’ evidence is that he did not see the Respondents on the Disputed Land. In this regard, I note there is some dispute as to how often Mr Collins was at 247, but on any view he was not there all the time: he accepts he would spend a couple of nights per week at his partner’s house between 2007 and 2017, and that, after purchasing his current property in 2018, he would return regularly and continue to maintain 247. He said he stopped living at 247 full time in early 2019.

41. It was suggested to the First Respondent that Mr Collins would have been alerted to any such access on his CCTV, which Mr Collins averred covered the Disputed Land. The First Respondent accepted that there was a CCTV camera at the front of 247’s property, but he thought it was pointed towards the driveway and not directly at the Disputed Land.

42. Mr Collins’ evidence in this regard is very much a bare assertion: whilst I can understand that there may no longer be CCTV evidence available, no details are provided as to exactly where the camera was pointed, why, or how Mr Collins would have been alerted to any access, for example, by explaining how often it was reviewed, or if there was a trigger system.

43. It was suggested to the First Respondent that the reference to rubbish being removed related to the narrow strip between two fences along the rest of the frontage to 249 (see the Aerial view photograph above and photograph below). He maintained that rubbish was also removed from the Disputed Land, saying that there was “ quite a length of low fence ” there. This is consistent with the physical features, as shown in the photograph below; the Disputed Land is to the right of the horizontal fence in the foreground. Fencing to the front of 249

44. Mr Collins avers that he maintained the Disputed Land. His evidence is that he mowed the grass at 247, usually weekly, using ride-on mowers, and says that this included the Disputed Land. The Applicants rely on the Aerial view photograph, which shows lines in the grass running approximately north-south in the area between the buildings, and a turning circle to the east of the garden area near the road.

45. Counsel for the Applicants questioned the First Respondent by reference to the photograph below, part of a valuation report of 247 in 2005, suggesting that this shows the Disputed Land was well mown. The First Respondent maintained that the Disputed Land was further back than this, and that the grass shown was not part of the Disputed Land. Comparing the photograph with the plans, particularly using the footprint of the building for scale, I would tend to agree that the Disputed Land is behind and to the right, and I do not accept that this photograph shows the Disputed Land. 2005 photo

46. There is not much by way of photographic evidence of the Disputed Land itself. There are a number of aerial photographs provided from throughout the Relevant Period, but all that can be made out is the tree canopy. The only photographs are recent, for example, the two 2021 photographs, which show trees and shrubs but not mown grass.

47. There is also a reference in Mr Collins’ statement to trimming the hedge along the roadside between 247 and 249, “ ensuring that I had clear lines of sight from the driveway ”. Analysis

48. Having considered the evidence, and particularly those points highlighted above, I accept that the Disputed Land was accessible through the Gate, was accessed by the Respondents, and was not maintained to anything beyond a trivial degree by Mr Collins; and I am not satisfied that that the Applicants can demonstrate a sufficient degree of physical control of, or an intention to possess, the Disputed Land.

49. I reach these findings for the following reasons: (a) it is not in dispute that the Respondents installed the Gate. It is a natural inference that they did this because they wanted to have access to the other side of the Fence; (b) there is no independent evidence that the Disputed Land was so overgrown as to be inaccessible; (c) the Respondents’ evidence was not that they were on the Disputed Land all the time, or for prolonged periods, or using it as part of their garden, or anything of that sort. Mr Collins was not at 247 all the time, and may well not have been around, or simply not noticed, when they did access it. I do not accept there is anything in the point about CCTV; (d) I do not accept that there is or was any substantial area of grass on the Disputed Land. The 2021 photographs show trees and shrubs. Indeed, it is the Applicants’ case that the area was so overgrown that access through the Gate was not possible: I appreciate that an area of land may not be uniform, but the Disputed Land is a narrow wedge, and it seems to me there is insufficient room for an area of shrubbery and anything other than an insignificant area of grass. I accept that Mr Collins mowed 247, but not the Disputed Land to any materially significant degree; (e) trimming a hedge for the stated purpose of keeping lines of sight clear is in my judgment trivial and in any event equivocal; (f) I find it difficult to accept that somebody who was regularly maintaining the Disputed Land to any material degree would not have been aware of the Gate; (g) for the avoidance of doubt, I do not accept that the Gate was “ carefully concealed ”; it was installed into the existing Fence.

50. The real thrust of the Applicants’ case on adverse possession is the existence of the Fence, enclosing the Disputed Land as part of 247. However, this is to entirely overlook two features of the case: (a) firstly, the fact that the Fence existed at the time of the Transfer Out. The Transfer Out transferred the paper title of the Disputed Land to the Respondents. They did not have to “ take possession ” of the Disputed Land, they can simply rely on their paper title (subject to any application for adverse possession). In these circumstances, in my judgment, something more than the continued existence of the Fence is required; (b) secondly, Counsel for the Applicants’ submission that the Fence demonstrates a clear intention to exclude others does not survive either the admission that the Respondents installed a Gate, or the finding that they used it to access the Disputed Land.

51. A lot of the cross-examination of the First Respondent was about what he did or did not do on the Disputed Land, for example, why the Fence was not moved, or the boundary according to the Transfer Out otherwise marked out. It sometimes felt as though it was the Respondents’ application for adverse possession that was being contested by the Applicants, but that is of course not the case: I repeat that it is for the Applicants to establish adverse possession of the Disputed Land; the Respondents can rely on their paper title.

52. It is right to note that it might be said some of the evidence on these other points goes to credibility. However, it seems to me that this case is not one that really turns on credibility in any meaningful sense; rather, the Applicants have not come up to proof. Even if the Respondents had not accessed the Disputed Land, I would not have been satisfied that the Applicants had made out their case.

53. Having found that the Applicants have not established adverse possession of the Disputed Land, I do not need to go on to consider the question of reasonable belief. I have considered whether to make any further findings in relation to this in any event, but, on balance, I have decided not to. I am conscious that there may be other issues between the parties in relation to the construction of the Transfer Out (including, potentially, a dispute as to the correct plan to the same), which overlap considerably with the question of reasonable belief, but which I did not consider as part of these proceedings for the reasons already outlined. Conclusion

54. For the reasons give above, I am not satisfied that the Applicants have demonstrated adverse possession of the Disputed Land, and I shall direct the Chief Land Registrar to cancel their ADV1 application dated 5 th August 2022.

55. I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would mean an order that the Applicants pay the Respondents’ costs, unless there is some good reason to make a different order.

56. A party may claim costs even if they are unrepresented (litigant in person costs are allowed at the rate of £19 per hour unless the litigant can prove financial loss). Costs are potentially recoverable from the date of the reference to the Tribunal, which in this case took place on 5 th December 2023.

57. It was drawn to my attention during the hearing that there is a considerable bundle of without prejudice correspondence that may be relevant to the question of costs. All I will say is that, at present, I know of no reason why it would not be just to make the usual order in this case. My preliminary view is therefore that the Applicants should pay the Respondents’ costs from the date that matter was referred to the Tribunal, to be summarily assessed if not agreed.

58. Any application for costs should be sent to the Tribunal and the other side by 5pm on 16 th January 2026, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate. Dated this Thursday 18 th December 2025 Laura D’Cruz By Order of The Tribunal