Crypt-ic matters: adverse possession

The case of King and Anor v The Benefice of Newburn in the Diocese of Newcastle (Land Registration – Adverse possession) [2019] UKUT 176 (LC) confirms that possession and control are key grounds that must be evidenced in order to successfully establish adverse possession.

The appellants are descendants of Edward Collingwood who conveyed the Holy Trinity Church, Dalton and its churchyard to the Church Building Commissioners in 1837. The conveyance retained the crypt/ burial vault beneath the church building to Collingwood and there were 4 family burials between 1840 and 1940. However, the church (and therefore access to the vault) had been locked by the Diocese since 2004 when regular worship there ceased. At first instance, the FTT found that despite the paper title to the vault resting with Collingwood (and his appellant successors), the Diocese had been in physical possession and control since 1940 and had therefore acquired the vault by adverse possession.

The descendants of Edward Collingwood appealed to the UT. The UT decided that although the Diocese had kept the church locked, this was for security rather than to exclude the appellants who could have accessed the keys on request. Access to the church had therefore not been denied. The UT also found that there was no evidence that the Diocese or anyone on its behalf had entered the vault.

The UT held that the Diocese could not demonstrate physical possession of the vault nor that they had dealt with the vault as an owner. It also dismissed the Diocese’s argument that locking the church doors was enough to put the appellants on notice that they were being excluded from the vault.

It was decided that even if the Diocese could argue successfully that the appellants had not themselves entered into the vault, this would in itself not dispossess them of the land.

The Diocese’s plan to redevelop the church as residential property will now depend on the parties reaching agreement on how to move forwards. The alternative is that the church building could continue to fall into a potentially irreparable state.

This decision confirms that although the Sentence of Consecration under s.37 of the Church Building Act 1818 extends to burial vaults, it does not automatically give rise to an adverse possession claim and anyone claiming adverse possession need to ensure the basics of physical control and possession.

Restricting the owner’s access alone may not be enough, especially if the applicant has not physically entered into and possessed the property. Church owners should also check that they own all of the property, particularly if there are burial vaults or other issues which may have been reserved out of a historic transfer. Ultimately, failure to do so could stall or defeat any development plans.

For any more information on the topics covered in this article please contact Sophie Michaelides from our Property Litigation Team on: s.michaelides@ashfords.co.uk.