REF/2005/1864

 

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

GREAT PARNDON INVESTMENTS LIMITED

 

APPLICANT

 

and

 

WINIFRED OMOYIOLA OYELEYE

 

RESPONDENT

 

Property Address: 9 St. Saviours Road Croydon

Title Number: SY58891

 

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: Care Standards Tribunal, 18 Pocock Street London SE1 0BW

On: 7 and 8 August 2008

 

 

Applicant’s representation: Counsel

Respondent’s representation: Counsel

 

 

 

 

Adverse possession. Vendor dies before completion. Contractual purchaser breaks into property, changes the locks, develops and lets it. Time runs for the purpose of adverse possession from the date possession is taken by the contractual purchaser. Hyde v Pearce, [1982] 1 All ER 1029, distinguished.

 

 

1.        For the reasons given below, I shall direct the Chief Land Registrar to give effect to the application of the Applicant made on 18 October 2004.

 

2.        The property in dispute, 9 St. Saviours Road Croydon, is registered in the name of Basiru Ola Lawal (Mr. Lawal). The Respondent (Mrs. Oyeleye) claims that Mr. Lawal held the property in trust for her absolutely. She had sold the property to him in 1980, but (despite acknowledging receipt of the purchase price in the transfer at that time) she had been paid nothing. Mr. Lawal, she states, was her partner, and he acknowledged that she was absolutely entitled to the property. On 12 July 1989, a caution was entered on the proprietorship register in favour of Mrs. Oyeleye, who lived elsewhere in London. The application was made by solicitors on her behalf and was dated 16 June 1989. The grounds for the application were that the property was transferred to Mr. Lawal by her without consideration to hold in trust for her, that she had been paying the outgoings since transferring the property. I note that this is not entirely consistent either with the express wording of the 1980 transfer or with Mrs. Oyeleye’s evidence that the original intention had been that Mr. Lawal would pay for the property but that he had been unable to raise the funds. However, it is unnecessary, in the context of this claim for adverse possession by Great Parndon, for me to resolve these discrepancies. I am prepared to assume that, as she contends, Mrs. Oyeleye was absolutely beneficially entitled to the property.

 

3.        The property was offered for sale by auction on 25 July 1989, but did not sell. The Applicant (Great Parndon), acting through its managing director, David Palmer (Mr. Palmer) then negotiated a sale with the auctioneers, Andrews Baxter and Robertson, who were acting as agents for the vendor, Mr. Lawal. By a memorandum of agreement dated 11 August 1989, the auctioneers, as agents for Mr. Lawal, acknowledged the sale of the property to Great Parndon for £51,000, and acknowledged receipt of a deposit of £5100. Mr. Palmer states, and I accept, that a counterpart memorandum was signed by him and given to the auctioneers.

 

4.        Mr. Lawal was at that time living in Nigeria. Unfortunately, he died there on 27 August 1989. Although it would appear that a grant of letters of administration to his estate was issued in Nigeria on 18 July 1990, no grant was ever made in England, and his estate in England, if any, remains unadministered. On the basis that the property was held on trust for Mrs. Oyeleye absolutely, it would not form part of his estate, and she would have been entitled to apply to the court for it to be vested in herself.

 

5.        Mrs. Oyeleye had been paying the outgoings on the property, which was unoccupied and largely derelict, until the summer of 1989. By letter dated 30 July 1987, Croydon Council had written to her, referring to the poor condition of the property and threatening action in respect of the property unless it was repaired. Nothing appears to have been done, and in 1988 Croydon Council issued a compulsory purchase order. Mr. Lawal objected, through his solicitors, Sebastian Coleman & Co., on the basis that he intended to dispose of the property. A public enquiry was arranged, and was held on 15 August 1989. It was then adjourned on the basis that the property had been sold, and it appears that on 30 October 1989 Croydon Council wrote that they no longer wished the compulsory purchase order to be put forward for confirmation. The Secretary of State therefore did not confirm it.

 

6.        When it became clear that the sale could not be completed speedily because of the death of Mr. Lawal, Mr. Palmer states that he arranged to borrow the keys from the auctioneers so that he could secure it and clear rubbish from it.

 

7.        It is clear that the reason for the Council’s concern was the derelict state of the property, coupled perhaps with the fact that it could be made available for housing. By letter dated 14 August 1989, Great Parndon had written to Croydon Council that completion was expected to take place on 8 September 1989. By a letter of that date, the council had written to Great Parndon to check whether completion had occurred, and Mr. Palmer responded both orally and by letter of 11 October 1989 that the vendor had died but that they still wished to complete and had cleared the rubbish from the property and commenced re-instatement works, and had applied for building regulation approval, including working drawings. At that stage they were still hoping to complete the purchase within three months. Great Parndon’s plans for the conversion of the property into two self-contained flats were approved by the council and Great Parndon were notified of this by a letter also dated 11 October 1989.

 

8.        I am satisfied that Great Parndon must have obtained temporary access to the property at that stage to enable measurements to be taken for the drawings, and that they would not have told the council that they had cleared the rubbish unless they had done so or were in the process of doing so. I also accept the evidence of Mr. Palmer that the keys were returned once this had happened.

 

9.        On 19 October 1989, a caution was registered at the Land Registry in favour of Great Parndon to protect its contractual interest.

 

10.    For a time, nothing happened at the property, while attempts were made to complete the purchase of the property. At some point before April 1991, however, an application appears to have been made for planning permission for the conversion into two flats and the provision of two parking spaces. By letter dated 18 April 1991, Croydon Council notified Great Parndon’s agents, D.F. Oxlade Design Services Limited, that permission had been granted.

 

11.    Mr. Palmer’s evidence was that within a month of planning permission being granted, Great Parndon had taken possession of the property and commenced work. It was completed within about three months thereafter. Since that time, Great Parndon had been in occupation of the property, and had been letting the flats and receiving the rents. While Mr. Palmer’s statutory declaration dated 8 October 2004 is silent as to how Great Parndon took possession, in evidence at the hearing he explained that he had authorised his workmen to break into the property.

 

12.    Counsel for Mrs. Oyeleye asked me to disbelieve Mr. Palmer as to this because he had not spelled it out in his statutory declaration. He also challenged Mr. Palmer’s account as to what Great Parndon did with the property in the subsequent years on the basis that no disclosure had been given of documents relating to the development and subsequent letting of the flats. If Mrs. Oyeleye had wished to pursue this argument, she should have sought disclosure of those documents at a much earlier stage and not left it to cross-examination at the hearing. She could also have sought evidence from the occupants of the flats as to who their landlord was. I reject her explanation for not doing so on the ground that she did not wish to harass them.

 

13.    In any event, even if, contrary to my findings, Mr. Palmer had obtained the keys from the auctioneers, they had no authority from the owner to part with them, so that Great Parndon’s occupation could not be said to be with the consent of the true owner.

 

14.    Mrs. Oyeleye claims to have been able to obtain access to the property and to have done so to clear rubbish from it for some time after August 1989. It is clear, however, that she was excluded from the property once the development began. She knew that somebody else was developing and occupying the property, of which she claimed to be the beneficial owner. She also knew that Mr. Lawal had died and that there was nobody else to protect her interests. Although an enquiry by her solicitors in 1992 as to the caution which had been registered by Great Parndon had led to its being told of the contract of sale, Mrs. Oyeleye claimed at the hearing that she had no knowledge as to who was occupying the property, and denied knowing that it was Great Parndon. That makes it even more extraordinary that she did nothing to protect her interests against the occupiers.

 

15.    Her claim that this was because she believed that she was protected by the caution registered on her behalf is not credible. It is possible that with bad legal advice she might have believed that the caution protected her against a claim to adverse possession, but it is not credible that she believed that the caution assisted her at all in respect of the fact that for over 12 years she was obtaining no benefit from, and was unable to access, the property of which she claimed to be beneficial owner. I found her to be an intelligent witness, and I accept her evidence that she owned other properties as well as having an interest in this one. Either she did not recollect, or was not willing to give a full account of, what occurred over the years, and where her evidence conflicts with that of Mr. Palmer, I prefer that of Mr. Palmer.

 

16.    I am reinforced in this finding by the fact that, in June 1990, Mrs. Oyeleye received a rates rebate in respect of the period after 10 August 1990 – that is from the date of the contract of sale to Great Parndon- despite her claims that she knew nothing of this contract prior to her solicitors’ enquiries in 1992. She was unable to provide any satisfactory explanation for this.

 

17.    I am satisfied that Great Parndon’s possession was not with the consent of the true owner, or of Mrs. Oyeleye, and was with the intention of excluding the true owner so far as possible. I am also satisfied that this is not affected by the fact that had the owner sought to be paid the purchase price under the contract of August 1989, Great Parndon would have paid that price, or by the fact that Great Parndon had protected its rights under the contract of sale by registering a caution. In this respect, the case is to be distinguished from Hyde v Pearce, [1982] 1 All ER 1029, where the occupation was as a purchaser under a contract of sale, and was so viewed by both the vendor and the purchaser. Here the occupation was not under the contract of sale but was wholly unauthorised.

 

18.    It is also plain that no question arises of any breach of either Mr. Lawal’s or Mrs. Oyeleye’s human rights following the decision of the Grand Chamber of the European Court in Pye v UK, and the decision of the Court of Appeal in Ofulue v Bossert [2008] EWCA Civ 7.

 

19.    As Great Parndon’s occupation of the property commenced by May 1991, it had adversely occupied the property for over 12 years by May 2003, before the relevant provisions of the Land Registration Act 2002 came into effect in October 2003. Accordingly, pursuant to section 75 of the Land Registration Act 1925, the registered proprietor held the property on a bare trust for Great Parndon. As the beneficial interest asserted by Mrs. Oyeleye was an interest in possession, time ran against her as well as against the registered proprietor (Limitation Act 1980, s.18(1)).

 

20.    Great Parndon has therefore acquired a title to the property by adverse possession and is entitled to be registered accordingly.

 

 

 

Dated this 8^th day of September 2008

 

 

By Order of The Adjudicator to HM Land Registry