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Hotel gains portion of disputed land

Court decision: Puisne Judge Stephen Hellman

A dispute over a property on Dunscombe Road has resulted in the owners of the Fairmont Southampton gaining a portion of the land through adverse possession.

While the courts found that the papers for the property belonged to Etoile Elizabeth Burch, Westend Properties Ltd, who own and operate the nearby hotel, maintained a portion of the land for more than 40 years under the mistaken belief that they owned the lot.

According to a recently released Supreme Court judgment, the court heard that Ms Burch’s parents had owned a tract of land in Warwick, which was divided into several plots.

In February of 1939, they conveyed several of the lots to their children, with the then-18-year-old Ms Burch being given lot 11.

While the deeds of conveyance have since been lost, each conveyance was recorded in a document titled “Heads of Voluntary Conveyance” which was registered at the Registry General on March 7, 1939.

However, the court heard that Ms Burch did not learn that the land had been conveyed to her for more than 70 years.

The judgment, written by Puisne Judge Stephen Hellman, stated: “The plaintiff gave evidence that she did not learn that lot 11 had been conveyed to her until about five years ago, and then only through her son. He gave evidence that he learnt about the conveyance following a discussion at a family funeral.

“When cross-examined [Ms Burch] accepted that it was peculiar that prior to that no one had ever told her about the grant. She conjectured that it was because she had moved to many different places with her husband and had often been quite ill.”

In 1969, Peter and Ida Petty conveyed a tract of land in Warwick now known as the “Faraway” Development to Westend Properties Ltd, purportedly including lot 11.

While the documents claim the title came from a 1953 indenture, that indenture has since been lost.

A sister of the plaintiff recalled in a sworn affidavit that Mr Petty expressed an interest in purchasing land between Lots 11 and 12, but that the 1953 indenture had been for a separate piece of property on the same road.

The court heard that sometime around 1972, the lot was cleared and a section of the property was fenced off by Westend Properties. The fenced off area was subsequently maintained by Fairmont Southampton staff, who trimmed the hedges and mowed the lawn once a month while the rest of the lot became overgrown.

The Rehabilitation Manager in the Engineering Department of hotel testified that the fence was erected on the site primarily for the safety of hotel staff, noting a steep drop a short distance from the lot’s boundary.

While the fence was removed by the plaintiff’s son in 2011, the fence posts remained in place and hotel staff continued to maintain what had been the fenced-in area.

Mr Justice Hellman wrote that he was sure Ms Burch had received the land by conveyance in 1939 and, even if the defendant honestly believed they were conveyed the land in 1969, that purported conveyance could not be effective as Ms Burch was not aware of her interest in the lot at the time.

“As the 1953 indenture did not convey legal title to Lot 11 to the Pettys, the Pettys could not pass legal title to [Westend Properties],” he wrote. “Thus paper title to lot 11 remains with [Ms Burch].”

However, Mr Justice Hellman noted that under the law any person who has adverse possession of a property for 20 years without any actions by the owner to recover the land, the original owner’s title to the land will be lost.

“I am satisfied that by fencing off and maintaining part of lot 11 for more than 20 years the defendant has established factual possession of the fenced area,” he wrote.

“However throughout that period and indeed since the 1969 indenture the defendant has left the land outside the fence untended and unused. In my judgment the defendant has not established physical possession of the unfenced area of the lot.”

He directed that the parties jointly seek planning permission to divide the lot, stating that if planning permission is denied the matter should be returned to the courts.

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