This article was first published in the Practical Law UK Property Litigation Column.
According to the statistics held by HM Land Registry, some 15% of land in England and Wales is unregistered. In particular, much of the land owned by the Crown, the aristocracy and the Church has not been registered, because there has been no change in ownership of the land since compulsory registration on sale of land was introduced.Consequently, while the scope for title to registered land to be acquired by way of adverse possession has been significantly circumscribed, the doctrine of adverse possession remains very much alive and kicking in relation to unregistered land, even if the same cannot be said of the occupants of the particular piece of land in question in the instant case.
Factually, this is rather an unusual case, concerning a dispute between a church and the successors in title to a family vault located beneath the central aisle of the nave. Rarely, when one thinks of squatters, does one have in mind the Church of England. Notwithstanding these unusual features, the principles considered and applied by the Upper Tribunal are of broader application.
The appeal arose from the decision of Judge Elizabeth Cooke on references to the First-tier Tribunal (FTT) made by the Land Registry, following the application of Church authorities for the first registration of title to the church building and churchyard of Holy Trinity, Dalton, near Newcastle upon Tyne.
The church (which is now Grade II listed) was constructed by Edward Collingwood, the great-great-grandfather of the appellants. The church together with its churchyard were originally conveyed to the Church Building Commissioners by Edward Collingwood on 1 October 1837, as a chapel of ease for the parish of Newburn. The church and churchyard were consecrated by the Bishop of Durham nine days later.
The church contains a burial vault, which lies below the central aisle of the nave of the church. Following the decision of the Court of Arches (Dr Lushington) in Rugg v Kingsmill (1867) LR 1 A & E 343, the consecration of a church or chapel extends to the vaults beneath, and the Sentence of Consecration in this case therefore extended to the burial vault.
The 1837 Conveyance expressly excepted and reserved to the grantor, Edward Collingwood:
“… the Vault or Burying Place in the interior of the said Chapel lately made by me the said Edward Collingwood with full power for me the said Edward Collingwood my heirs and assigns to enlarge the said Vault so only that it do not extend beyond the Body of the said Chapel and do not injure the walls or foundations thereof And also with full power for me the said Edward Collingwood my heirs and assigns to open such Vault as aforesaid and use and repair the same at all reasonable times … “
The website for the family seat, Dissington Hall, notes that Edward had been born Edward Spencer-Stanhope. He had inherited the property from his uncle, Edward Collingwood (1734–1806), a barrister and coal mine owner of Chirton, who left it to him on the condition that he change his name to Collingwood. Dissington Hall was requisitioned in WWII and used as a TNT factory and accommodation for 50 young women in the WAFF.
Like many stately homes, the War was not kind to Dissington Hall. It suffered bomb damage in 1940 and was left unoccupied after the war and was the target of thieves who stole the lead from the rood. The property passed out of the Collingwood family in 1955 and, as appears to be the inexorable way of these things, it is now is a conference and wedding venue. The vault, however, remained in the ownership of the family.
There have been four interments in the vault. The first interment on 9 June 1840 being Arabella Collingwood, the wife of Edward, who had died at the age of 45. Thereafter, Edward himself, at the age of 75, was interred on 10 August 1866. Edward was swiftly followed by his eldest son, also Edward Collingwood, on 18 January 1868 who died, like his mother, at the age of 45. Dissington Hall and ownership of the vault then passed to the husband of Edward’s daughter, Arabella; again, on condition that he change his name to Collingwood. The fourth and final interment on 20 June 1940 was that of their son Edward Gordon Collingwood, grandfather of the appellants.
Sadly, the church had fallen into disuse and was closed for regular public worship in 2004. The church remains vested in the Church authorities, who want to remove the coffins within the vault and re-inter them elsewhere, so that the church can be marketed for sale as a potential residential conversion.
There is a deep sense of family history in this case. The appellants, one of whom now resides in New Zealand, were unwilling to accept the removal of the vault and the re-interment of their ancestors, notwithstanding the offer of a share in any profits.
The FTT had found that on the proper construction of the conveyance, the grantor retained the paper title to the vault, and that this was not invalidated by the provisions of section 37 of the Church Building Act 1818, or the subsequent consecration of the church. However, the FTT went on to find that the Church authorities had acquired title to the church by adverse possession. Edward’s descendants appealed against that decision.
The use of church and vault
Save for the interment of the members of the Collingwood family, there was no evidence that anyone had entered the vault.
It was common ground that there was no means of accessing the vault from the exterior of the church. The means by which the vault had been accessed to inter the Collingwood family members was unclear. Whilst there existed a flagstone with a metal ring, this would not afford sufficient space to enable a coffin to be taken down to the vault.
There was no evidence of any steps leading to the vault from the interior of the church. In 2010, a member of the family had met with Church officials and an inspection had been carried out. Flagstones had been raised and the roof of the vault exposed. A camera had been inserted through a small hole in order to take photos, which confirmed the presence of the coffins.
It was accepted in evidence that no incumbent of the church, or any representative of the Church Commissioners or the Diocesan Board of Finance (DBF) had ever entered the vault.
“(1) the owner has been dispossessed or has discontinued his possession, and (2) adverse possession has been taken by some other person. Discontinuance occurs where the owner abandons possession of the land; but abandonment will not be lightly presumed, and the slightest acts done by the owner will negative discontinuance. There will be a dispossession of the owner in any case where, there being no discontinuance, a squatter assumes possession in the ordinary sense of the word. Dispossession does not therefore require an ouster of the owner. It is thus not necessary that the owner should have been driven out of possession. If the owner abandons possession, or if the owner dies and the person next entitled does not take possession, time will begin to run as soon as adverse possession is taken by another. What matters is not how the owner has ceased to be in possession, but that some other person has taken possession that is adverse to that owner’s title. Until then, there is nobody against whom the owner is failing to assert his or her rights. Accordingly, in practice nothing is likely to turn on the distinction between dispossession and discontinuance; and, indeed, the expression “dispossessed owner” has been used as shorthand to refer to the owner displaced by the squatter.”
- The respondents could not demonstrate physical possession of the vault because they had never entered it or sought to exclude the descendants of the Collingwood family with the paper title to the vault from exercising any of the rights attaching to the paper ownership.
- In the light of the conduct of the Church authorities, in affording access to the interior of the church, and the terms of their correspondence with the appellants (in which among other matters they had sought the agreement of the family to the burial rights over the vault to come to an end and for the three caskets to be reinterred), the respondents could not properly assert that they had the requisite intention to possess the vault to the exclusion of the owners with the true paper title. The locking of the church was considered to be an equivocal act, being directed to excluding members of the public, and not to exclude the descendants of Edward Collingwood from seeking to visit the site of the burial vault and the memorials within the church.