The Upper Tribunal (Lands Chamber) has upheld the title of the descendants of the original grantor to a family burial vault in a closed church.
In King & Anor v The Benefice of Newburn in the Diocese of Newcastle (Land Registration – Adverse possession)  UKUT 176 (LC), Holy Trinity Church, Dalton, and its churchyard had originally been conveyed to the Church Building Commissioners by Edward Collingwood on 1 October 1837 as a chapel of ease for the parish of Newburn and consecrated by the Bishop of Durham nine days later. The church has a burial vault below the central aisle of the nave, and the dispute was about the vault’s ownership. It was agreed that the consecration of a church or chapel extends to the vaults beneath it and that the vault in question was therefore consecrated .
The 1837 conveyance expressly excepted and reserved the vault to the grantor, Edward Collingwood; and the First-tier Tribunal (FTT) found that on the true construction of the conveyance, the grantor retained the paper title to the burial vault, notwithstanding the provisions of s.37 of the Church Building Act 1818 and the consecration of the church nine days later. There was no challenge to or appeal from those findings; and the appeal proceeded on the basis that neither of the respondents could assert a valid paper title to the vault . However, the FTT went on to find that since the last burial in 1940 at the latest, successive incumbents had been in physical possession and control of the burial vault and that the successors in title to Edward Collingwood, as represented by the appellants, had therefore lost their title because of the incumbents’ adverse possession . The parties were given permission to appeal and to cross-appeal on the main substantive issue between them: whether the respondents (or either of them) had made out a claim to the vault based on adverse possession. The appeal proceeded by way of a rehearing .
The church was declalred redundant and closed for regular public worship in 2004 under a Pastoral Scheme; and the building (but not the surrounding churchyard, which remains vested in the incumbent for the time being) was vested in the Newcastle Diocesan Board of Finance (DBF) – the second respondent and, effectively, the respondent to the appeal. The existence of the family vault and the uncertainty about its true ownership had prevented the Church Commissioners from making any significant progress towards preparing a viable scheme for its alternative use for residential purposes and its consequent disposal. The DBF and the Church Commissioners wished to settle the future of the building before its condition deteriorated to the point where reuse was unviable:
“If this appeal fails, the Church Commissioners will be free to dispose of the church building for residential use. If this appeal succeeds, making the reuse of the church building for residential purposes unviable, the only available option may be a proposal to demolish the church.” .
The Tribunal urged the parties “to engage constructively with each other to avoid such an undesirable outcome, which would be contrary to their personal interests and also to the wider public interest” .
The Tribunal made the following findings of fact: there had been four interments between 9 June 1840 and 20 June 1940. There was no evidence that any incumbent of the church or any representative of the Church Commissioners or the DBF had ever entered the burial vault. Since consecration extended to the burial vault it would have been subject to the faculty jurisdiction, but research in the church and diocesan records had failed to reveal the existence of any faculties relating to any interments within the vault . It was common ground that the burial vault was at all times accessed from the interior of the church . Before the church was closed for regular public worship, its door had been left unlocked and there had been no bar to access. After it was closed for regular worship, it had been kept locked and the keys held at the Newcastle diocesan office in North Shields:
“but the Tribunal also finds that this was done for reasons of security and safety, and that there was never any intention on the part of the Church Commissioners, acting on behalf of the respondents, to exclude the descendants of Edward Collingwood from accessing the interior of the church, or the floor of the church nave above the burial vault, or the Collingwood memorials. At all material times, the Church Commissioners, acting on behalf of the respondents, have recognised the property and rights reserved to the successors of Edward Collingwood by the 1837 Conveyance…” .
Further, at no time had the respondents (or the Church Commissioners on their behalf) sought to deny any request from the appellants or their families for access to the site of the burial vault or to the Collingwood memorials .
The appellants – who live in New Zealand and could not be present at the hearing – relied on their own statements and a statement from Mr Timothy King’s adult son, while the respondents’ only witness was the relevant case officer, Ms Emma Cosgrif . The appellants argued that, since there was no appeal from the FTT’s finding that the benefice and the DBF did not have the paper title to the vault, the onus was on the respondents to establish that they had obtained title to the vault by adverse possession . Further, there was no evidence that either respondent had ever taken possession of the vault or that the incumbent, or, after the closure of the church, the DBF, had ever demonstrated the requisite intention to do so. The appellants also relied upon the various written acknowledgments of their title .
The respondents’ case was that at all material times since 1940, either the incumbent (before 19 April 2004) or the DBF (since the closure of the church) had been in exclusive physical possession and control of the church building, including the vault and that they, and no-one else, had dealt with the burial vault as an occupying owner could be expected to have done. They had intended to possess the church building, including the burial vault, and had done so in fact .
The Tribunal did not accept that since at least 1940 the incumbent, then the DBF, had been in exclusive physical possession and control of the burial vault or that they had the requisite intention to possess the vault by treating it as their own. The Tribunal also rejects the alternative case that since the church was closed for regular worship in 2004, the DBF had been in exclusive physical possession and control of the burial vault, or that it had the requisite intention to possess the vault by treating it as their own. 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 their rights . Locking the church doors had not put the paper title owners of the vault on notice that they were being excluded from possession, nor could the respondents’ ability to prevent access to the vault from outside the church “sensibly be said to amount to the act of taking physical possession of the vault” . In short, the respondents had never taken or been in possession of the vault, or evinced any intention to do so to the exclusion of the paper title owners . Appeal allowed .
In conclusion, however:
“The Tribunal makes it clear that it is not deciding whether the appellants, or either of them, are the freehold owners of the burial vault, as successors in title to Edward Collingwood. The Tribunal would also reiterate its invitation to the parties to engage constructively with each other to avoid any outcome that might result in the demolition of this fine, historic Grade II listed church building. This would be contrary to the personal interests of the parties and also to the wider public interest” .