The Upper Tribunal decides that ownership of a burial vault under a church is not lost by adverse possession

20th June 2019

Charles Auld

The Upper Tribunal, in the case of King & Blair v The Incumbent of Newburn [2019] UKUT 176 (LC) decides that ownership of a burial vault under a church is not lost by adverse possession merely because the church has been closed for over 12 years. The Upper Tribunal’s decision was handed down on Monday, 17th June 2019 in which Charles Auld of our Real Estate team was instructed on a direct access basis, appearing for the Appellants. Charles provides a summary about this interesting case.

To meet the need for increased church attendance arising after the end of the Napoleonic Wars, Parliament passed the Church Building Act 1818, providing £1 million (about £70 million today) for the construction of new churches and setting out a simplified form of conveyance for the transfer of land on which new churches were to be built.

Edward Collingwood was a landowner in Northumberland. A church was built on his land and, by a conveyance dated 1st October 1837, it was conveyed to the Church Commissioners in compliance with the 1818 Act. The new church was built with a brick-lined burial vault underneath it and the 1837 conveyance included the following:

Save and except out of the conveyance hereby made the Vault or Burying Place in the interior of [the church]…..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’s wife was buried in the vault in 1840; Edward himself in 1866; their son in 1868 and their grandson in 1940. In about 1867 a brass memorial was put into the floor of the church recording: “Here rest the bodies of Edward Collingwood….and Arabella his wife…”. Despite its wording, this brass memorial was not directly over the vault, but some 3 metres from it.

Following its closure in 2004, the church was locked. The Church of England authorities wanted to remove the coffins from the vault, bury them elsewhere and market the building for conversion into a house. They made contact with Patricia King and Ian Blair, the current descendants of Edward Collingwood, and made arrangements for them to visit the church whenever they asked to do so. Ultimately unable to agree a way forward, in 2016 the Church authorities applied to the Land Registry for first registration of title not only of the church itself, but also of the vault. When Mrs King and Mr Blair objected, the Land Registry referred the matter to the First-tier Tribunal [‘FTT’].

In the FTT the Church authorities advanced a number of arguments based on Canon Law and also that the 1818 Act (and section 37 of it in particular) meant that words excluding the vault from the 1837 conveyance were of no effect so that the vault had, in fact, been conveyed with the church.

The FTT decided all these arguments in favour of Mrs King and Mr Blair, but also determined that their title had been extinguished by adverse possession. The FTT came to that conclusion because it held that the main “enjoyment” of land used as a burial vault consisted not in entering it, but in coming to the brass memorial and remembering those buried in the vault. As the church had controlled access since probably 1940 and certainly since locking the door in 2004, that enjoyment was not possible and therefore, after 12 years, title would have been lost by adverse possession. True Mrs King and Mr Blair had visited the church since 2004, but, as this was with the permission of the Church authorities, it did not prevent title being lost.

Mrs King and Mr Blair appealed contending 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, by itself, sufficient. They also argued that the 1837 conveyance included an easement of access to the vault and that accordingly their visiting the church was as of right and that the Church authorities had never suggested otherwise.

On 17th June 2019 the Upper Tribunal allowed their appeal. Judge Hodge QC held that since nobody from the Church had ever entered the vault they had never been in exclusive possession of it. The locking of the church was equivocal as it was directed to excluding the public in general and not the descendants of Edward Collingwood – in particular it did not put those descendants on notice that they were being excluded from possession of the vault. The 1837 conveyance included a right of access to the vault which the Church authorities had never challenged, since they had always, without reservation, provided access when they were asked for it.

Charles Auld

20th June 2019