Adverse possession

Tales from the Crypt

A church was built on land in Northumberland by a landowner Edward Collingwood which was conveyed to the Church Commissioners on 1st October 1837. The church was built with a burial vault underneath it and the transfer included the following clause:

…..and also the 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.

Edward, his wife and son were all buried in the vault, as was their grandson in 1940. A plaque, dating back to 1867, was installed into the floor of the church: “Here rest the bodies of Edward Collingwood….and Arabella his wife…”

In 2004, the church was locked and closed. The Church of England wanted to remove the coffins from the vault, bury them elsewhere and sell the building with the intention of converting to a house. Patricia King and Ian Blair, the descendants of Edward Collingwood, were contacted and it was agreed they could visit the church whenever they wished. In 2016, the Church applied to the Land Registry for first registration of title of the church and vault. Mrs King and Mr Blair objected, so the Land Registry referred the matter to the First-tier Tribunal.

In the Tribunal, the Church argued, under Canon Law and also the Church Building Act 1818, that words excluding the vault from the 1837 conveyance were of no effect, so the vault had been conveyed with the church.

The Tribunal decided in favour of Mrs King and Mr Blair but said that their title had been extinguished by adverse possession. Adverse possession occurs when someone occupies land that does not belong to them and without permission; then after a certain period of time (either 10 years if registered land or 12 years if unregistered) the land may become the occupiers. The Tribunal found that the main “enjoyment” of land used as a burial vault was not in entering it, but in coming to the brass memorial and remembering those in the vault. As the church had controlled access since 1940 and certainly since locking the door in 2004, enjoyment was not possible and therefore, after 12 years, title was lost by adverse possession.

Mrs King and Mr Blair appealed on the basis that since the Church authorities had never been into the vault, they could not have gained title by adverse possession and that merely controlling access was not sufficient. It was also argued that the 1837 conveyance contained an easement of access to the vault and so their visits were of right and the Church had never suggested otherwise.

Upper Tribunal allowed the appeal. It was held that since nobody from the Church authorities had ever entered the vault, they never had exclusive possession of it. The locking of the church was to exclude the public and not the descendants of Edward Collingwood. The 1837 conveyance included a right of access to the vault which the Church had never challenged, indeed they had provided access when requested.

Should you require any advice or assistance in connection with adverse possession or a civil litigation matter, please do not hesitate to contact Stephen Foote.