The behaviour of beneficial owners of land held on trust for a family member was “so unreasonable that it should have costs consequences” in a “pointless” battle over an application for registration of title to land by adverse possession, a court has ruled.
Respondents Nicola Jane Glanville and Lady Eileen Audrey Blount were ordered to pay the costs of appellant Stuart John Pilbrow following an appeal against a First-tier Tribunal (FTT) decision related to the disputed land.
Sitting in the Upper Tribunal (Lands Chamber), Judge Elizabeth Cooke heard the respondents had not shared their “cast-iron defence when they could and should have done so,” leading to a year “wasted on pointless litigation and thousands of pounds in legal costs”.
The appeal centred around a costs order made by the FTT after Pilbrow withdrew his application for registration of title to land by adverse possession.
In 2023, Pilbrow applied to HM Land Registry (HMLR) to be registered as proprietor of an area of land adjoining his property in East Grinstead, on which he had built with planning permission.
The disputed land forms part of the registered title to Tilkhurst Farm, of which the respondents are registered proprietors. In his application, Pilbrow relied on paragraph 5(2) and 5(4) of Schedule 6 of the Land Registration Act 2002: proprietary estoppel, and a reasonable belief that the land was his.
In January 2024, Glanville and her mother Lady Blount were given notice by HMLR of the registration and objected. The matter was referred to the FTT.
In their statement of case submitted to the FTT, dated 4 August 2024, they challenged the application on the grounds of proprietary estoppel on the basis they owned the land. On 21 August 2024, documents including planning permission, plans, photographs and correspondence were submitted to the FTT.
On the same day, Mrs Glanville’s husband filed a witness statement informing the FTT the two respondents had held beneficial ownership of one half of Tilkhurst Farm on trust for the Glanville’s 32-year-old eldest son until he reached the age of 35. In accordance with paragraph 12 of Schedule 6 of the Land Registration, any part of an estate subject to a trust cannot be regarded as being in adverse possession.
Pilbrow withdrew his application for registration of title, and the respondents claimed their costs, claiming Pilbrow “should have asked them if [the land] was held on trust”. The FTT made no order for costs, and Pilbrow appealed. His time and costs had been wasted, he said, as the respondents “had kept quiet” about the trust, which amounted to a complete defence to his claim, for many months after his application to HMLR.
The existence of the trust should have been revealed in the respondents’ initial objection, he added, noting that it was registered in 2023 with the Trust Registration Service making it clear the respondents were aware of their obligations.
Finding for Pilbrow, Judge Cooke accepted the respondents’ omission was inadvertent, but said it was “astonishing” that they had not disclosed the existence of the trust much earlier – “ideally at the point when they objected to HM Land Registry, but certainly once matter progressed to the FTT.”
She added:
“…they are trustees. It is their duty to be aware of the trust and of its terms, to know for whom they hold the land…No doubt the trust is a family arrangement that runs along peaceably and has not required the trustees to give it their attention for practical purposes, but legally they are required to have it in mind.”
With regard to Pilbrow’s application, Judge Cooke added:
“It was certainly not regarded by anyone as a hopeless case – there had been no application to strike it out – and it was not for anyone to say whether or not he would have been successful. But that was not the point. The fact was that he could not succeed, and had wasted time and costs on pointless litigation because the respondents did not tell him that they had a cast-iron defence when they could and should have done so.”
Setting aside the FTT’s decision, the respondents were ordered to pay Pilbrow’s costs of the FTT proceedings.
