England and Wales Land Registry Adjudicator

 

REF/2007/0579

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

B E T W E E N

 

(1)   TARIQ MEHMOOD ZAHID

(2)   MOHAMMED OMER FAROOQ ZAHID

(3)   FATIMA ZAHID

(4)   SARDAR MOHAMMAD ZAHID

APPLICANT

 

and

 

 

(1)   SURINDER SINGH

& BELDEV KAUR SINGH

(2)   CHELTENHAM & GLOUCESTER plc

 

RESPONDENTS

 

 

Property Address: 231 Lee High Road, Lewisham, London, SE13 5PQ

Title Numbers: SGL 470930

 

Before: Ms Stevens-Hoare sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: Procession House, London

On: Friday 16, 17 and 18 September 2008

 

 

Applicants’ Representation: Harriet Gore (Counsel)

First Respondents’ Representation : Samuel Laughton (Counsel)

Second Respondent’s Representation: Jeremy Bamford

 

DECISION

___________________________________________________________________________

 

KEYWORDS: Adverse Possession – Factual Possession - Consent – Landlord & Tenant – Equitable Tenancy - Nature of tenancy & termination of tenancy - Cessation of rent payments

 

Cases referred to:

Warren v Murray [1894] 2 QB 648

Seddon v Smith (1877) 36 LT 168

Hollinshead v Wheawall (1956) 156 EG 278

Hughes v Griffin [1969] 1 WLR 23

Powell v McFarlane (1977) 38 P&CR 452 @ 469

Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232

Fairweather v St Marylebone Property Co Ltd [1963] AC 51

Doe d Davey v Oxenham (1840) 7 M&W 131

Hayward v Chaloner [1968] 1 QB 107 @ 122

Re Jolly [1900] 2 Ch 616

Lodge v City of Wakefield Metropolitan Council [1995] EWCA Civ 41

Moses v Lovegrove [1952] 2 QB 533

Long v Tower Hamlets LBC [1998] Ch 197

 

Introduction

1.             By an application dated 16 August 2006 the Applicants sought to register title of the property known as and situated at 231 Lee High Road, Lewisham, London (“the Property”) on the basis of adverse possession. The application was made under paragraph 1 of Schedule 6 of the Land Registration Act 2002 (“the 2002 Act”) and the Applicants indicated an intention to rely on paragraphs 5(2) and 5(3) of Schedule 6. That application was supported by a statutory declaration made by all the Applicants. Both the First Respondents and the Second Respondent filed notices objecting to the application, requiring it to be dealt with under paragraph 5 of Schedule 6.

2.             This matter was referred for Adjudication on 3 May 2007.

 

The Initial Applications

3.             At the beginning of the hearing both the First Respondents and the Applicant applied for permission to rely on a new witness statement. I granted the necessary permission to both. Complaint was made by Ms Gore, for the Applicants, that further documentation exhibited to the First Respondents’ new witness statement should have been disclosed previously. There was good reason for that complaint. However, in the interests of justice and ensuring all available, relevant and admissible evidence was before me, I allowed the evidence to be adduced and gave Ms Gore the time she requested to consider that new evidence.

4.             An application was also made by the Second Respondent, supported by the First Respondents, for the determination of a preliminary issue. The suggested preliminary issue was a factual dispute over whether or not the Applicants had paid rent during and/or for some or all of the period of the alleged adverse possession. Ms Gore argued that in the particular circumstances of this case that issue, even if determined against the Applicants, would not necessarily result in the rejection of their application. Further, it was submitted it would not be easy to separate that issue from the remainder of the case. I refused the application only because I concluded the evidence, particularly the cross-examination, on the preliminary issue would not be significantly shorter than the evidence in the whole case. I anticipated that there would be an exploration of other points in the case by all sides in order to attack the credibility of each other’s witnesses. I decided would not be appropriate to risk a situation where if the Respondents’ case failed on that factual issue the trial of this matter would be substantially prolonged when I had concluded that even if it was successful relatively little time or costs would be saved.

5.             The Second Respondent sought further orders as to disclosure against the Applicants. The subject matter of that application had in substance been the subject of an earlier order for disclosure made on 15 August 2008. It was alleged the Applicants had failed to comply with that order. I reiterated the effect and scope of the order directly to Tariq Zahid (“Tariq”), the only Applicant at the hearing, and made his continuing obligation to comply with it forthwith absolutely clear. On instructions on behalf of the Applicants Ms Gore indicated that all documents in the Applicants’ possession and control had been disclosed.

6.             Finally the Respondents, particularly the Second Respondent, raised the fact that the Applicants case was not being approached as a claim under Schedule 6 of the Land Registration Act 2002. Rather it was pointed out the claim as set out in the Statement of Case and Ms Gore’s skeleton argument seemed to range over a significant a number of other causes of action including fraud, fraudulent misrepresentation, rectification of the register, constructive trust or proprietary estoppel and breach of trust and breach of a contract for an option most of which, it was submitted, went beyond my jurisdiction as an Adjudicator’s pursuant to s108 of the 2002 Act and the limited jurisdiction in relation to equity by estoppel under s110(4).

7.             Having had similar concerns I urged Ms Gore to join with both Counsel for the Respondents in seeking to clarify how she put the Applicants’ case and to narrow the issues. Further, I warned those representing the Applicants in the hearing that if they advanced cases that I have no jurisdiction to deal with, enmeshed in the case I did have jurisdiction to deal with, it was likely I would make findings of fact on the basis of the evidence and arguments before me that could be relied upon by the Respondents in the event the Applicant sought to take matters further in other proceedings on the basis of issue estoppel. Ms Gore made it clear she and the Applicants understood that was the position.

8.             The following day I was informed that the Respondents had confirmed their agreement that, for the purposes of this matter, the 1984 agreement between the Applicants and the First Respondents (“the 1984 Agreement”) for the assignment of the existing lease and the payment of £18,000 by the Applicants resulted in the Applicants being equitable lessees and their occupation of the Property until 29 September 1987 was pursuant to that interest. Second, it was agreed by the Respondents that the 1991 possession proceedings commenced against the Applicants by the First Respondents were commenced against the wrong party. It was conceded that the first of the First Respondents Mr Singh (“Singh”) and Mr Tufail “Tufail”), as the then legal owners of the existing lease, which had not been determined by forfeiture or under the Landlord and Tenant Act 1954, should have been defendants to any claim by the First Respondents as freeholders. Ms Gore indicated she had invited confirmation as to those matters in order to be able to limit the scope of her cross-examination as far as possible. It was my understanding at that point that the Applicants therefore agreed those matters. Unfortunately that review of the issues did not result in any clarification or narrowing as such of the Table of Issues attached to Ms Gore’s skeleton argument or any clarification as to how the Applicants’ case was put.

 

The Background

9.             The Property consists of a ground floor shop (“the Shop”) that has been operated for some considerable time by the Applicants as a grocery or convenience store with an off licence. Above the shop is a flat (“the Flat”).

10.         It is a matter of agreement between the parties that by September 1972 the freehold of the Property was vested in the GLC and in that month the GLC granted a 15 year lease (“the Lease”) of the whole of the Property to a third party. Further, it is agreed that there came a time around 1982 and 1983 when Singh and Tufail (“S&T”) agreed with the then lessee of the Property, a Mr Iqbal, that they would take an assignment of the Lease,. It is clear that they paid a deposit and went into occupation of the Property pending completion of the transaction. It is also apparent that the GLC were aware of their existence and the proposed transaction. It appears from a letter dated 15 March 1983 sent to S&T, by their solicitor, that it was a term of the Lease that the lessee could not assign part of the Property and any assignment of the whole would require the landlord’s consent. Everyone accepts such consent was not secured at the time although S&T took up possession of the Property, S&T and Mr Iqbal treated the assignment as completed between themselves.

11.         The documentation shows the assignment was finalised as between S&T and Mr Iqbal by 26 June 1984. Having secured the leasehold interest to the extent I have described it appears S&T were negotiating with the GLC with a view to purchasing the freehold. Ultimately, in August 1985 the GLC transferred the freehold, subject to the Lease, to Singh alone pursuant to a contract for the sale of the freehold dated 25 July 1985. That interest was not registered in Singh’s name for some time. By a letter dated 10 September 1987 the London Residuary Body confirmed that the GLC had in fact given consent to the assignment of the Lease to S&T earlier, in May 1985.

12.         Having taken up possession of the Property, commenced business out of the Shop at the Property and taken an assignment of the Lease without the GLC’s consent, in 1984 S&T negotiated a deal with the Applicants. The exact terms of that arrangement are not agreed and I will return to that matter later. However, it is now the position of all parties that the Applicants were to have the benefit, by assignment of the remainder of the Lease and that pursuant to that arrangement Tariq/the Applicants paid Singh or S&T £18,000, the Applicants took up occupation of the Property and took over the business of the Shop. Again the exact sequence of events is a matter of dispute, in particular who was in occupation of what part of the Property when. Further the Applicants alleged that a legal right for them to acquire the freehold was a feature of the arrangement and that is denied.

13.         Until about 1986 there was no off licence for the Shop. It is agreed that Singh applied for the off licence in 1986 and has applied for and renewed it, in his own name, every time it has been required since. It is also agreed that at least to begin with the Applicants gave Mr Singh the money required to obtain the licence. Further, it is a matter of agreement that the Applicants have been in possession of the Shop and have operated their grocery business, including an off licence under Singh’s licence, constantly since at least 1986. The Applicants allege Singh has not been in any way in control of or supervising that business.

14.         The Applicants alleged that they always paid their rent direct to the GLC. They allege there fairly early on, around 1985 or 1986, they stopped paying rent. They claim not to have paid any rent since then. The Applicants’ position is that when they discovered Singh had acquired the freehold from the GLC they considered him to have cheated and betrayed them. It would seem both the failure to formalise the assignment of the Lease and/or the acquisition of the freehold feature as reasons for their ceasing to pay the rent.

15.         In April 1987 the freehold of the Property was transferred by Singh into the joint names of himself and his wife, the First Respondents. At the same time they obtained a mortgage from the Second Respondent which was registered against the Property. That mortgage was obtained on the basis that the First Respondents were in occupation of the Property. The Applicants allege the First Respondents were not in occupation claiming they were in occupation of both the Shop and the Flat at that point.

16.         By 1987 the parties were in dispute. The Applicants alleged in solicitor’s correspondence the £18,000 was paid by them for the assignment of the remainder of the 15 year lease and the entitlement of the Applicants to “exercise his right as a tenant in occupation to purchase the freehold from the GLC...”. At that point the First Respondents offered to grant new 15 year lease. During this period Tufail provided the Applicants with some support confirming that the balance of the Lease had been sold to the Applicants for £18,000 and Singh had not completed the agreement reached.

17.         At this time the Applicants registered a caution against the Property alleging an entitlement to the whole of S&T’s legal and beneficial interests in the Property pursuant to an oral agreement and that they had paid their rent to the GLC pending formal completion of the contract. Not much of the relevant documentation is available but it appears to have been the Applicants position that by reason of the contract between them and S&T they were entitled to both the Lease and the freehold.

18.         In 1991 the Second Respondents issued mortgagee possession proceedings against the First Respondents and the First Respondents commenced possession proceedings against the Applicants on the basis they were trespassers. It was alleged by the First Respondents that the Applicants occupied pursuant to a licence which was determined by a letter dated 14 December 1990. The Applicants applied to join the Second Respondent’s possession action and sought the consolidation of both matters. The Applicants alleged the Lease had been assigned to them and they had the benefit of an option to purchase the freehold of the Property, although it is not clear whether the option to purchase was alleged to be as against the GLC or S&T or to have been a term of the Lease.

19.         On 20 August 1991 the Second Respondent secured a suspended order for possession against the First Respondents. Since that date although the First Respondents have gone into arrears with their mortgage from time to time, they have been continuing to pay it.

20.         The First Respondents allege that after reaching a settlement with the Second Respondents they reached agreement with the Applicants. The alleged agreement was that the Applicants would pay £6,000 in respect of arrears of rent, their tenancy would continue for a further 15 years and the rental would not increase for a period, on the understanding the Applicants would carry out repairs. The First Respondents allege the Applicants have continued to pay the rent roughly as it has fallen due but have not done all the repairs agreed. The First Respondents have declared the receipt of rent to the Inland Revenue and paid tax accordingly.

21.         The Applicants deny the alleged agreement and deny the payment of any rent. Both parties are agreed that whether or not the possession proceedings were formally adjourned generally, in effect they were left in abeyance. Notwithstanding the Applicants’ case that they have not paid rent since 1986 or thereabouts, documentation disclosed by them late in the day shows rent as an item of expenditure recorded in their accounts over the years.

22.         The First Respondents point to a number of matters as demonstrating that the Applicants’ occupation has been with and pursuant to Singh’s and latterly their permission or consent and that the suggestion that the Applicants are entitled to, or believed they were entitled to, the freehold of the Property is false. In addition to the alleged payment of rent the First Respondents point to the reliance on the off licence he obtains for the Applicants, the payment of insurance for the Property by him and absence of such arrangements by them as well as the grant by him of licences for advertising hoardings in 2005. The First Respondents also point to the fact that in 1994 the Applicants approached the Second Respondent with a view to purchasing the Property from the Second Respondent a significant sum should they exercise their power of sale as mortgagee by reason of the First Respondents’ default on the mortgage.

 

The Primary Areas of Factual Dispute

23.         The exact terms of the 1984 Agreement between S&T and the Applicants are a matter of dispute. The Applicants suggest the agreement went beyond the agreement to transfer the remainder of the Lease and involved so form of option or other right to buy the freehold such that Singh’s acquisition of the freehold was a breach of contract or trust.

24.         There are factual disputes about whether and for what period the First Respondents occupied the flat at the Property after the Applicants took possession of the Shop.

25.         There is also a significant factual dispute about whether the Applicants have paid rent for their occupation of the Property at any point in time after 1986 and in particular between 1992 and 2005.

 

The Applicants’ Case

In the Application and Statutory Declaration

26.         In the Statutory Declaration that supports their application (the details of which I have referred to at paragraph 1 above) the Applicants allege the 1984 Agreement was a contract for the grant of lease for 15 years commencing in February 1984 and for an option to purchase the freehold directly from the GLC in 1999. Further it claims the Applicants have been in adverse possession since 1984 because their occupation could not have been authorised by S&T who had no interest in the Property at the time.

27.         It then alleges that in 1987 Singh offered a 15 year lease from 1987 which was refused thereby demonstrating their adverse possession. Reliance is also placed on the refusal to give up possession in 1990/1991 prior to the possession proceedings. It is alleged in the statutory declaration that the First Respondents discontinued the proceedings. That was not a contention that was taken any further or was evidenced by anything other than the bald statement to that effect in the statutory declaration.

28.         The Applicants expressly confirm that their occupation was not pursuant to a lease, tenancy or licence nor with the consent of any person. They confirm the payment of some rent to the GLC and some other sums to the Second Respondent and other creditors of Mr Singh. There is no reference to rent being paid or not paid from 1986 onwards.

29.         The statutory declaration makes a passing reference to Schedule 6 of the 2002 Act but does not seek to address either of the paragraphs 5 conditions relied upon in the application.

In the Applicant’s Statement of Case

30.         It should be noted that the Applicants’ Statement of Case seems to use references to the Applicants and Tariq alone interchangeably and without any apparent logical reason. I have treated both as a reference to the Applicants since they present themselves as a united group for all purposes and no one submitted there was any significance in drawing the distinction between them.

31.         The Statement of Case alleges:-

                         i.              in 1984 S&T represented themselves to be equitable tenants under the Lease and that as tenants under the Lease in actual physical occupation they were entitled to an option to purchase the freehold from GLC;

                       ii.              the 1984 Agreement was for the sale to the Applicants of all of S&T legal and equitable rights such as the leasehold when procured and the option to purchase the freehold for £18,000;

                     iii.              upon taking up occupation of the Property and/or the payment of £18,000 the Applicants became the tenant of the Property with the right to purchase the freehold from the GLC and all S&T’s equitable rights were transferred to the Applicants;

                     iv.              following the GLC’s consent to the assignment of the Lease to S&T, Singh or S&T held the Lease on trust for the Applicants;

                       v.              the transfer of the freehold to Singh was fraudulent because Singh was not in occupation of the Property and not entitled to the option having agreed a sale to the Applicants and the freehold was secured by a false representation by him to the GLC that he was a tenant in occupation of the Property;

                     vi.              further the freehold was obtained in breach of Singh’s duty as trustee and was therefore held as trustee for the Applicants, Singh having no entitlement to the same;

                   vii.              the transfer of the freehold to the First Respondents’ joint names was in breach of Mr Singh’s duty as a trustee;

                 viii.              the Applicants’ interest was an overriding interest as against the First Respondents;

                     ix.              the mortgage application to the Second Respondent was based on a fraudulent representation to deprive the Applicants of their interest and was an unconscionable transaction; and in the alternative

                       x.              the Applicants have been in adverse possession for 12 years from their discovery of the transfer of the freehold to Mr Singh and/or to the First Respondents by reason of stopping their payment of rent and/or from 17 September 1985 when they registered a caution and they are entitled by reason of the transitional provisions for adverse possession under the 2002 Act; and

                     xi.              it is inequitable and/or unconscionable and by reason of an equitable estoppel for Singh to deprive the Applicants of the interest that had accrued to the Applicants.

32.         The Statement of Case does not address adverse possession under Schedule 6 of the Act, in particular the conditions in sub-paragraphs 5(2) and 5(3) at all.

33.         The Applicants’ primary case would appear to be that they occupied initially pursuant to an equitable tenancy however following termination of that tenancy they occupy as trespassers adverse to their “landlord’s” interest. The termination of the tenancy is not addressed save by means of the cessation of rent. The Applicants allege in addition that they have a beneficial entitlement to the freehold, whilst Singh and then the First Respondents are the trustees (thereby accepting they are the legal owners and the landlord of any tenancy). That claim is entirely dependent on the alleged option. No explanation is given as to how an option could possibly arise by reason of a contract with S&T and not the freeholder, GLC. The question why the acquisition of the freehold by S&T, which would be a pre-requisite to their ability to comply with the obligation to transfer it to the Applicants, was a breach of contract or trust was also not addressed. Nor was there any explanation how the beneficial interest in the freehold is alleged to have passed to the Applicants without any attempt to exercise the option, any step to enforce the option once Singh had the freehold and was able to transfer it and without any purchase price due under the option being offered or paid.

34.         Adverse possession claim is put forward on the basis of 12 years prior to the commencement of the Act on the basis the Applicants were tenants, albeit equitable tenants, who ceased paying rent. That is not the claim made by the actual application that has been referred to adjudication although the supporting statutory declaration did overlap with that case.

In Ms Gore’s Skeleton Argument

35.         The legal concepts used in setting out the Applicants’ case in Ms Gore’s skeleton differ to some extent from those used in the Statement of Case. The Skeleton Argument contends:-

                         i.              S&T’s interest in the Lease was an equitable interest that was an overriding interest by reason of their occupation;

                       ii.              The Applicants acquired an overriding interest by reason of their actual occupation and claim to an interest under S&T’s equitable interest;

                     iii.              The Applicants’ interest was binding on Singh when he acquired the freehold without vacant possession, as an overriding interest and/or by reason of his representation and knowledge about the alleged option agreement and Singh held his interest as bare or constructive trustee for the Applicants;

                     iv.              by reason of Mr Singh’s delay in rectifying his “betrayal” of the Applicants’ entitlement to an option to purchase the freehold it no longer equitable for Singh to receive the acquisition price for the freehold under the option and the Applicants are simply entitled to the freehold without payment;

                       v.              a false claim by Singh that he resided in the Property to secure the mortgage from the Second Defendant by which he benefited fraudulently from his dishonesty also made it unconscionable for Singh to receive the acquisition price for the freehold;

                     vi.              the Applicants occupied without paying rent, having registered a caution and have therefore been in adverse possession;

                   vii.              the Second Respondents mortgage is not enforceable because limitation has expired since it is more than 12 years since the First Respondents’ went into arrears for the first time;

                 viii.              the Applicants alleged at the time of the Second Respondent’s mortgage being created they were in occupation, not the First Respondents, and therefore overreaching would not arise on the First Respondents’ grant of the mortgage;

                     ix.              further the Second Respondent was aware the First Respondents did not occupy the Property as they alleged and the Second Respondent did not take steps to address that misrepresentation so it would be inequitable for the Second Respondent’s charge to remain effective against any interest the Applicants have.

36.         The absence of an explanation or argument relating to an adverse possession claim such as that contained in the original application therefore continued. The adverse possession claim is alleged to arise as a consequence of the alleged cessation of rent. Again that claim is accompanied by a claim to the beneficial interest in the freehold of the Property by reason of the option in the 1984 Agreement and Singh’s acquisition of the freehold notwithstanding the fact the option was not exercised and the purchase price, that it is accepted would ordinarily be due pursuant to the option, was not paid.

37.         The case against the Second Respondent appears to depend entirely on limitation (as between the First Respondents and the Second Respondent) and a argument as what is equitable without any attempt to assert an estoppel. The restarting of a limitation period upon payment or acknowledgement of title was not addressed.

Tariq Mehmood Zahid’s Evidence

38.         The only evidence given on behalf of the Applicants was that of Tariq. His only witness statement was the statement served late in the day and was rather short.

39.         In his oral evidence Tariq confirmed the accuracy of that statement without amendment. Paragraph 2 of that witness statement deals with the 1984 Agreement. It refers to an agreement to buy the remaining 3 years of the Lease, plus the goodwill, fittings, fixtures and stock for £18,000. It describes the apportionment of that purchase price as being £14,500 for the Lease and £3,500 for the goodwill, stock, fixtures and fittings. He indicates that the Applicants did not agree to S&T being their leaseholders or their freeholders. There is no reference to a lease for 15 years nor to any term of the agreement with S&T being about any the grant of an option, or any rights over or to acquire the freehold. Paragraph 3 refers to the Applicants having been attracted to the Property because it was a council property followed by the assertion that “if we occupied it for 3 years we can exercise our right to buy the freehold from the council”. It is then suggested that S&T confirmed that they could buy the freehold from the GLC although he accepts that the Applicants did not see the Lease and do not know whether it included an option.

40.         When cross-examined Tariq accepted that S&T informed the Applicants that they an agreement with the GLC’s tenant for the transfer of the Lease to them but they did not actually have the Lease at that point as they needed the GLC’s permission which had not been obtained. It also became apparent that Tariq believed, in his own mind, that at as long as the GLC was the landlord at the end of the Lease, whatever the type of property, tenancy or the terms of the tenancy, the tenant (whoever it was) would have the right to buy the freehold possibly at a discount. He indicated that S&T told the Applicants they should buy the Lease and later “you can buy the freehold”. Although he made reference to a promise that they could buy the freehold Tariq never identified a conversation or other communication when such a promise was made, by whom it was made, what the terms of it were or the words used. He acknowledged in cross-examination he was aware when reference was made to the possibility of buying the freehold that S&T had no power over the freehold and its disposal. At a later point having talked again about the right to buy he frankly conceded “because so many people were buying as sitting tenant I thought we could” and he acknowledged that he had understood there was nothing stopping the GLC selling to whoever it wished whether him or anyone else, including Singh. Tariq did not point to anything said or done by Singh or S&T that suggested any entitlement to the freehold or any guarantee that it would be possible to secure a purchase if the GLC were unwilling.

41.         Tariq also contradicted himself a number of times on the question the 1984 Agreement involved any offer of or agreement to a new 15 year Lease (as alleged in his statutory declaration) or a 15 year lease commencing at the end of the term of the Lease rather than simply the assignment of the remainder of the Lease. On cross–examination he suggested he had some belief that if they acquired the remaining 3 years of the Lease they would automatically get a new 15 years because they were already tenants. He did not give any coherent explanation for this belief or the fact he seemed to believe this would automatically be their entitlement in addition to the entitlement to acquire the freehold. He failed to have any coherent explanation of the various accounts of the 1984 Agreement given at various points, struggling to accept the obvious inconsistencies and failed to address inconsistency with the statutory declaration in any coherent or convincing way.

42.         The witness statement suggested all rent paid was paid to the GLC and the Applicants ceased to pay rent because of the delays in the provision of formal documentation relating to the 1984 Agreement with S&T. Tariq did not deviate from that account.

43.         A payment of £2,000 made to Singh was put to Tariq because the First Respondents alleged it was a rent payment. He indicated that it actually related to a refund for money paid by Singh when he collected four airline tickets for Tariq from Kings Travel. They were said to relate to a trip for his brother’s wedding. When asked about that later he said the wedding was around Easter 2004 and the trip was a 2 to 3 week trip with the tickets being collected about 2 weeks before hand. It was put to him that the documentation showed the payment was in fact was made in January 2004, was for a round £2,000 which was unlikely to the cost of four airline tickets and was paid by credit card through Mr Singh’s shop which was unlikely if it was refunding money paid by Singh personally for Tariq personally. The point was made that putting it through the business would make it taxable income. Tariq was unable to explain those peculiarities.

44.         Tariq also confirmed that Singh had been happy to help out by collecting and paying for the tickets in 2004 because they were friends. He confirmed that he was saying that notwithstanding the refusal to pay rent since 1986 and issues that were raised between the parties in 1987 and in 1991, and his own perception that Singh had acted fraudulently, cheating and lying to them, he/the Applicants and Singh had all remained friendly for a long time. Indeed he suggested that they would get things at the cash and carry for each other’s businesses and explained that he just thought they would get together and sort things out at some point.

45.         Tariq was unable to assist at all with whether there was any new agreement made in 1991 or 1992 in the context of the possession proceedings. He was not in the country at that point. He said his parents dealt with it and he did not recall what was said about it all.

46.         As mentioned above the Applicants’ business accounts year on year had a figure for rent as one of the items of expenditure and accordingly reduced their liability for tax. When asked about those accounts and the reference to rent Tariq accepted they related to the rent for the Property but suggested the figures represented money put aside for the rent payments rather than rent actually paid. Further he produced statements of accounts into which he claimed the money was paid. He was forced to accept the statements of account showed a completely ad hoc pattern of different sums of money going in and being taken out and that it did not represent the sums referred to in the business accounts or anything like the rent he said would have been due being put aside.

47.         Further in his witness statement Tariq accepted that Singh obtained the off licence used in the business in 1986 and that the Applicants have reimbursed Singh the money he has spent on getting the licences in subsequent years. In his evidence Tariq accepted that the licence was renewed annually and suggested the Applicants paid for the licence until 1991 only. He said that he assumed Singh had paid for it himself since then. He suggested Mr Singh continued to get the licence so that his name was on the Property but accepted that the Applicants traded on the basis of that licence although it was Singh’s licence.

In Ms Gore’s Closing Submissions

48.         Ms Gore originally sought an adjournment overnight after the closing submissions for the Respondents prior to making her submissions although there was plenty of time for her to start her submissions and make longer submissions than her opponents had done. I indicated I would sit late if necessary for her to finish. I refused the requested adjournment, which was the last in a number of such requests to allow Ms Gore time to reflect on matters. Ms Gore initially refused to continue with her submissions making her application for an adjournment repeatedly despite my refusal of it. She completely unable to point anything that she had not previously been aware of to explain why she could not proceed with her submissions in the usual way. The only explanation Ms Gore was able to give was that she needed time to assimilate the documents she wished to rely on.

49.         It is fair to say the trial bundles in this matter, which were produced by the Applicants’ solicitor were dreadful and the page references on different sets of the bundles differed. Indeed for the most part it was only possible to manage the documentation in this matter because of a core bundle provided by the Second Respondent and familiarity both Counsel for the Respondents had with the eccentric organisation of the Applicants’ bundles.

50.         Having given Ms Gore time on a number of previous occasions during the hearing and seeing no objective reason why she should be in difficulty making her submissions, other than the fact she had not managed to get to grips with her own bundles and given the fact she should have realised she was likely to have to make that day, I required her to continue. I was not prepared to have the matter run into another day with the cost consequences that would have flowed from that. I did however give Ms Gore some time to gather her thoughts.

51.         Ultimately when Ms Gore had completed her oral submissions she requested permission to provide a slim bundle of the crucial documents when she had assimilated them and such further authorities as she could find to support her arguments, some of which were introduced for the first time in her closing submissions. Having heard from both Counsel for the Respondents, who were unhappy about the proposal, I indicated I would accept such documents provided they were confined to documents already before me and authorities. I made it clear I was not giving permission for any further submissions to be provided.

52.         Following the hearing I received another bundle of documents and authorities which were accompanied by both a summary and a document headed “Amended Documents and Issues” that in fact constitute further submissions. Indeed the copies of the particular documentation Ms Gore wished me to consider were themselves marked with highlighting that might be said to be an attempt to make further submissions by another means. Notwithstanding my order that there be no such submissions I have read those additional submissions, authorities and highlighted documents. Having considered them and the matter generally I took the view I did not need any further assistance for either Counsel for the Respondents on those matters.

53.         In her closing submissions, including the additional documentation provided after the hearing, Ms Gore introduced a few new concepts to deal with arguments raised by the Respondents and points I raised with her.

54.         First, it was submitted to me by the Respondents’ Counsel that the Applicants could not be in adverse possession whilst the GLC was freeholder and the original tenancy subsisted nor whilst any tenancy the Applicants or any of them held or that was held for them subsisted. The First Respondents submitted that the Applicants’ equitable tenancy was protected by the Landlord and Tenant Act 1954 Part II (“the 1954 Act”) and it had not been determined, whether nor not the Applicants had been paying rent. In order to make that submission Counsel for the First Respondents had made the concessions referred to above at paragraph 8 as to the Applicants’ status and the ineffectiveness of the attempt to terminate that status and the possession proceedings against them. The Second Respondent adopted that argument as an alternative to its primary argument that whatever the technical legal nature of the Applicants’ occupation it was with the First Respondents’ consent and permission.

55.         In addition given the absence of anything in Tariq’s oral evidence or witness statement about an option in the dealings between S&T and the Applicants Ms Gore sought to advance an argument that the 1984 Agreement involved the creation of a secure tenancy that would have given rise to a statutory right to buy the freehold in some form. The submissions on behalf of the Applicants rely on the right to buy or option allegation to argue that they Applicants have become entitled to the Property in any event, something which could conceivably assist them in satisfying one of the three conditions under Schedule 6 paragraph (3) as they need to in light of the application actually made.

56.         In order to meet both those problems Ms Gore argued that the Applicants had a secure tenancy of the Flat at least. This argument was raised for the first time in closing. It was argued that the equitable tenancy conferred on the Applicants by the 1984 Agreement was in fact two tenancies consisting of a tenancy of the Flat protected under s28 of the Housing Act 1980 as a secure tenancy and a tenancy of the shop protected by the Part II of the 1954 Act. Ms Gore confirmed that it was her submission that there was one agreement between S&T and the Applicants but that the one agreement gave rise to two tenancies. Some reliance was placed on Singh’s evidence that the First Defendants remained in occupation of the Flat when the Applicants took up occupation of the Shop in order to support the two tenancy submission. The first of Ms Gore’s difficulty in that respect was that her Client was very clear that Singh was being untruthful in his evidence.

57.         In closing it was argued by Ms Gore that the Applicants were in adverse possession as against the GLC from the day they went into occupation in 1984 because the GLC did not consent to their presence, the subletting was in breach of the Lease and the GLC therefore had a right of re-entry and the right to recover possession from the Applicants arose immediately, notwithstanding the fact the Applicants’ Statement of Case suggested the adverse possession started from the time they ceased paying rent. Further Ms Gore maintained that was the position notwithstanding her own submission that the Lease subsisted so that S&T held it at law for the Applicants in equity or as trustees. As I understand submission made to me it was that the Applicants were equitable lessees as against S&T and S&T were legal leases as between themselves and the GLC but as between the Applicants and the GLC the Applicants were trespassers and the GLC was entitled to claim possession from the Applicants. Further it was suggested if the Applicants were trespassers as against the GLC who was the freeholder then when Singh and then the First Respondents became freeholders the Applicants were similarly trespassers as against them.

58.         The Second Respondents had submitted that since the Applicants had applied under Schedule 6 of the 2002 Act and relied on paragraphs 5(2) and 5(3), by virtue of paragraph 9(2) and 9(4), paragraph 9(3) did not apply and any title acquired by the Applicants pursuant to this application would be subject to the Second Respondent’s charge. Ms Gore submitted once again that the Applicants acquired adverse possession by reason of 12 years adverse possession from 1984 which was therefore prior to the commencement of the 2002 Act and accordingly paragraph 9(4) of Schedule 6 of that Act did not apply. Ms Gore contended the Applicants’ interest was an overriding interest and the Second Respondents took subject to it. Ms Gore, quite rightly, did not advance the limitation argument previously raised.

59.         Although the point that the only application before me was the Applicants’ application under the 2002 Act had been made several times Ms Gore’s closing submissions did not address that point nor explain any basis on which the problems that arose with the Applicants’ case against the Second Respondent in that context could be overcome.

 

The Evidence

60.         I have dealt with the detail of Tariq’s evidence above. His various accounts of some crucial matters such as the detail of the 1984 Agreement were inconsistent. His oral evidence went through a number of shifts and changes and is positively inconsistent with the statutory declaration made at the beginning of this application when it was alleged the 1984 agreement was for a new 15 year lease commencing from February 1984 and a option to purchase the freehold in 1999. Further a number of Tariq’s explanations for things like the presence of the rent payment in his business accounts, the £2,000 payment into Singh’s business and the friendliness between the parties lacked credibility as to substance. His manner whilst giving evidence also suggested a tendency to say what he thought would help and a lack of honesty in his evidence.

61.         In those circumstances I have concluded that I cannot have any confidence in the accuracy or truthfulness of Tariq’s evidence.

62.         By way of contrast whilst there were occasions on which Singh gave the impression of someone holding back and not saying all he could, his evidence was generally calm, consistent, logical and coherent. Ms Gore’s cross-examination as to the date on which the Singh moved out of the Flat was effective and I was left with the impression Singh was being not wholly truthful about that. His reluctance to be completely truthful on that point when it meant he had made false statements in his mortgage application and the Second Respondent was in court was perhaps not surprising but still unacceptable. As a result although in all other respects Singh presented well as a witness I treat his evidence with a great deal of caution.

 

The Relevant Law & The Application

Adverse Possession & Tenancies, Licences & Permission

63.         The First Respondents submitted that it is trite law that possession under the terms of a lease, even if it is an equitable lease, cannot be adverse to the landlord [1]. A landlord retains the reversionary right to possession of the land. Indeed since a landlord may even claim adverse possession of adjoining land on the basis of his tenant’s actual occupation [2] it clearly correct, as a matter of general principle, that occupation by a tenant does not operate as adverse possession against the landlord so long as the tenancy subsists, rather it is consistent with and a form of the landlord’s possession and control of the premises. The one exception to that is in the context of the special rule relating to oral periodic tenancies which I will address a little later.

64.         Further, where a true owner grants a unilateral permission to another to occupy land that occupation will not be adverse unless or until the occupier renounces the permission or the true owner abandons possession or the licence is otherwise determined [3].

Adverse Possession against True Owners who are Landlords

65.         Schedule 1 paragraph 4 of the Limitation Act 1980 provides that where land occupied by a squatter is also subject to a lease time will not run for the purposes of adverse possession as against the landlord, who has a reversionary interest, for the benefit of a third party until such time the landlord’s interest comes into possession by the determination of the lease. It has always been a clear principle of the law of adverse possession that time will only run against a party who has an immediate right to possession. Where a tenancy is continuing the landlord does not have an immediate right to possession and cannot therefore claim possession against any third party until the tenancy has been determined. Indeed for that reason a landlord who enters property when a tenancy is subsisting can be claim adverse possession against his tenant. [4]

66.         Indeed, I note that in one of the authorities the Applicants rely on, Fairweather v St Marylebone Property Co Ltd [5], the House of Lords made it absolutely clear time will not run against a landlord until any tenancy of the premises had been determined. In that instance the House of Lords concluded that where an adverse possessor occupied property that was subject to a tenancy although time ran against the tenant who had the immediate right to possession and their title would in due course be extinguished as against the adverse possessor, time cannot start to run against the landlord until the tenancy had been determined as between landlord and tenant since until that point in time the landlord did not have the immediate right to possession.

67.         It follows in order to succeed in establishing any period of adverse possession it is necessary for the Applicants to establish that their occupation was not pursuant to a tenancy. Further in order to establish adverse possession against the freeholder of the Property at any point in time, GLC or Singh/the First Respondents, it is necessary for the Applicants to establish the freehold was not subject to any subsisting tenancy, whether vested in them or another, so that the freeholder had the immediate right to possession.

68.         It follows, on any view, the Applicants could not possibly have been in adverse possession as against the GLC or Singh prior to the expiry of the term of the Lease. Ms Gore’s argument appears to be that since the GLC did not consent to the assignment the Applicant’s position was adverse. Whilst it is correct that the GLC did not consent to any assignment and therefore had a right as against the legal lessee from time to time to forfeit the Lease for breach of covenant, which would have had the effect of determining all interests under the Lease, the GLC did not take that step and so long as it did not the Lease subsisted, the GLC had no immediate right to possession and time could not run against them.

69.         Accordingly, even if I accepted the Applicants’ factual account I would reject any suggestion they were in adverse possession of the Property as against either the GLC or Singh prior to the expiry of the term of the Lease.

Cessation of Rent Payments

70.         As a general rule the simple fact that a tenant has ceased to pay rent, even for a substantial period of time, does not result in the termination of the tenancy or cause time to run against a landlord for the purposes of adverse possession [6].

71.         However, there is a statutory rule that provides that time starts to run at the end of the first period of an oral periodic tenancy and is restarted by the payment of rent so that for practical purposes time will start at the end of the last period in respect of which rent has been paid: see paragraph 5 of Schedule 1 of the Limitation Act 1980 [7]. It follows the possession of a tenant under an oral periodic tenancy is deemed to be adverse to his landlord in any period of non-payment although the tenancy has not actually been determining. If the non-payment continues for sufficient time to extinguish title by way of adverse possession the tenancy is then treated as having actually been determine from the first period in which rent was not paid [8].

72.         It follows, if and for so long, as the Applicants were tenants the alleged non-payment of rent will only assist their case if the tenancy was an oral periodic tenancy. Ms Gore referred to Lodge v City of Wakefield Metropolitan Council [9] which is an instance of adverse possession by an oral periodic tenant as a result of the non-payment of rent, in support of the proposition the Applicants were in adverse possession against the GLC from 1984. That authority does not deal with the position where there is a holding over or statutory continuation following the expiry of a fixed term under a written lease and therefore does not deal with the position I am concerned with.

73.         Although it has been established that the mere fact of statutory protection of a residential tenancy will not defeat the impact of the non-payment of rent on an oral periodic tenancy [10] the impact of the non-payment of rent upon a 1954 Act continuation tenancy is not a matter that has been finally determined [11]. Further, Mr Laughton submitted that, in any event, a distinction should be drawn where the tenancy continued by the 1954 Act was a “tenancy in writing” i.e a tenancy created in writing and not an oral tenancy. It submitted written tenancies even when continued fall outside the operation of Schedule 1 paragraph 5(1) of the 1954 Act so that time would not run against the landlord during the holding over or statutory continuation of that tenancy. I accept that submission. It follows so long as the Applicants’ occupation of the Property is as tenants under the Lease or a statutory continuation of the same pursuant to s24 of the 1954 Act, whether as legal or equitable tenants, the simple fact of the failure to pay rent would not start time running against their landlord for the purpose of adverse possession.

Secure Tenancies & Their Termination

74.         In 1984 a secure tenancy would be created where the requirements of s28 of the Housing Act 1980 were satisfied, namely there was a tenancy under which a dwelling-house is let as a separate dwelling to a tenant who occupies the property as their only or principal dwelling and the landlord is a local authority or other specific body.

75.         It follows that the grant or the assignment of a single tenancy which related to both a dwelling house and a shop would not give rise to a secure tenancy. Further, where a secure tenancy existed but was assigned or sublet it would, by operation of statute, cease to be a secure tenancy [12].

76.         I reject the submission that the Applicants had the benefit of a secure tenancy as being flawed in a number of respects. The Applicants’ claim (with the sole exception of in their statutory declaration which was not supported by Tariq’s evidence) and the Respondents agree, whatever else was agreed the 1984 Agreement involved it provided for an assignment of the Lease. In those circumstances at best the Applicants acquired, as equitable lessees, the Lease assigned to S&T by the original tenant and then assigned by them to the Applicants. The Lease was one tenancy of both the Shop and the Flat. It follows the tenancy obtained, albeit as equitable lessees, was not a separate letting of a dwelling and, in any event, would have ceased to be a secure tenancy by reason of assignment.

77.         Ms Gore confirmed to me it was her submission that although the Lease and the 1984 Agreement dealt with the Flat and the Shop together what was created was two tenancies. However, she gave no explanation at all as to how that happened. I reject that submission since even if I accept the Applicants’ factual evidence there is no basis for concluding any tenancy was created by that agreement or that it involved two tenancies. I have concluded the Lease when assigned in equity and subsequently in law into S&T’s hands and when assigned in equity to the Applicants was one tenancy and not two. Further, I reject the submission that S&T or the Applicants ever had the benefit of a secure tenancy whether or not I accept the Applicants’ factual evidence.

1954 Act Tenancies & Their Termination

78.         Where a tenancy includes premises occupied by the tenant for the purpose of a business he carries on they will be premises to which Part II of the 1954 Act applies [13]. It follows the fact only part of the demised premises are used for the tenant’s business does not prevent the tenancy as a whole being protected by the 1954 Act. Where a tenancy is held on trust the carrying on of business by any beneficiaries under the trust is treated as the carrying on of business by the tenant.

79.         It follows given the Applicants’ argument, which is not disputed by the Respondents, that the Applicants occupied the Property as the equitable tenants under Lease and carried on their business in part of the Property, the Shop, the Lease attracted the protection of the 1954 Act and following the expiry of the term in September 1987 will have continued pursuant to s24 of the 1954 Act. Ms Gore has suggested that subletting of business premises extinguishes the protection of the 1954 Act and accordingly the Applicants’ tenancy was not protected. I reject that submission since on the Applicants’ own case they did not occupy as subtenants and in any event if a sub-tenant occupies and carries on business the subtenant and sub-tenancy will be protected, although the tenant and tenancy will no longer be protected.

80.         It follows with the expiry of the term under the Lease by reason of the Applicants occupation and carrying on of business whilst equitable lessees, the Lease continued and remained protected by the 1954 Act. Given the matters set out above it follows whether or not the Applicants paid rent their tenancy continued and time could not start to run against the landlords, the freeholder from time to time, until it is properly determined for instance by forfeiture or pursuant to the provisions of the 1954 Act.

Options & the Right to Buy

81.         A statutory right to buy can arise for the benefit of a secure tenant but not otherwise. As indicated above, on any view, an interest in the Lease could not give the Applicants or anyone else the benefit of a secure tenancy or therefore a right to buy.

82.         An option to purchase a freehold may exist as a private contractual right within a lease or as a separate collateral contract. However, such a contract formed in the 1980s would only have been enforceable if it satisfied the formalities required by s40 of the Law of Property Act 1925.

83.         Further, both a right to buy or a contractual option require the intending purchaser to serve a notice or as provided for by the agreement in order for the entitlement to proceed with the purchase of the freehold and the contract for the purchase to come into existence. Further in both instances the purchaser is required to pay a purchase price.

84.         The Applicants seek to argue that as a result of agreement between them and S&T, at a point when the GLC was the freeholder and S&T had no power over the freehold or the GLC and did not expressly agree not to purchase the freehold, they acquired a right to buy or option and any acquisition of the freehold by Singh was a breach of an obligation to them. That submission was made without reference to any authority and without any explanation of any legal principles that would support it. In short the submission makes no sense. Indeed if S&T purported to grant an option to acquire the freehold the acquisition of the freehold by Singh would be necessary a step towards that option being capable of performance.

85.         The further submission that the acquisition of the freehold by Singh amounted to unconscionable behaviour which entitles the Applicants to the freehold without exercising any option or taking any steps to exercise any right to buy and without payment for the same pursuant to whatever option or right to buy arises again makes no sense and is made without reference to any authority or recognised principle of law.

86.         It follows, even if I were to accept the Applicants factual account, I would reject the submission that the Applicants had the benefit of any option or right to buy relating to the freehold of the Property or any cause for complaint about Singh’s acquisition of the freehold or its transfer to the First Respondents.

Adverse Possession & Pre-existing Charges & Limitation

87.         The Second Respondent does not, in response to this application at least, seek to argue that it takes its interest in the Property free of the Applicants’ equitable interest under the Lease. The issue between the Applicants and the Second Respondent is whether if, contrary to the submissions of all Respondents, the Applicants have acquired the freehold title by adverse possession they take that interest free of the mortgage.

88.         The Second Respondent made the point a number of times that the Application referred to me was under Schedule 6 of the 2002 Act and on the basis it would be dealt with under paragraph 5 of that Schedule. Although, when that was point was put to Ms Gore she did not seek to challenged it at no points did Ms Gore address the requirements of Schedule 6 and in particular paragraph 5. Ms Gore correctly makes the point in her further closing submissions that where 12 years adverse possession has occurred prior to 13 October 2003 the ability to rely on that adverse possession to claim possessory title was not affected by s96 of the 2002 Act. However, the Applicants’ difficult is their application is to be registered pursuant to the 2002 Act not on the basis of adverse possession under the Limitation Act 1980 completed before the commencement of the 2002 Act.

89.         It follows for the purpose of this reference I must consider the 2002 Act scheme. No submission was put forward on behalf of the Applicants to answer the Second Respondent’s submission that if the Applicants succeed in their application to establish title by reason of adverse possession pursuant to paragraph 5(2) or 5(3) of Schedule 6 of the 2002 Act paragraph 9 in particular 9(4) operates so that the title acquired is subject to the Second Respondent’s charge. I have not been able to identify any answer to the Second Respondent’s submission.

90.         It follows, even if I concluded the application referred to me should be allowed, the title the Applicant would obtain would be subject to the Second Respondent’s charge.

 

Decision

91.         I have already set out above, particularly at paragraphs 60 to 62 my views as to two witnesses I heard from. I have concluded save for the issue about the date the First Respondents’ departure from the Flat I prefer the evidence of Singh where there are factual issues between the parties. In making my findings of fact, given my concerns about the evidence of both witnesses, I have looked for and found other evidence that is of assistance either because it supports Singh’s evidence or because it is part of the Applicants’ evidence or documentation and it contradicts Tariq’s evidence.

92.         I find as a matter of fact the 1984 Agreement was an agreement for the assignment of the remainder of the Lease and the goodwill fixtures and fittings of the business and no more. I reject the Applicants’ claims that there was some sort of representation or agreement about the grant or transfer of an option to purchase the freehold of the Property or the obtaining or securing of a right to buy the freehold or the grant of a new 15 year lease. There may well have been some discussion about the fact that it might be possible to reach agreement with the GLC for the purchase of the freehold. I have concluded however that anything about options or rights to buy arose purely by way of assumption and/or erroneous beliefs on the part of Tariq or the Applicants between themselves and that neither Singh nor Tufail did anything to contribute to such notions.

93.         I find as a matter of fact there was nothing in the discussions between S&T and the Applicants or in the 1984 Agreement that contemplated the splitting of the Property by reference to two separate tenancies or the grant of a new tenancy rather than the assignment of the Lease which related to both the Shop and the Flat. I have concluded that as a result of the friendship between Singh and the Applicants there was a willingness cooperate and the Applicants took up occupation of the Shop before the First Respondents left the Flat but the First Respondents did leave reasonably quickly and were not still in occupation when they entered into the mortgage with the Second Respondent.

94.         I have concluded that Singh’s evidence as to the payment of rent is to be preferred. I have concluded that after the acquisition of the freehold rent was initially paid to Singh. However, I find there was a period of time where, because the Lease had not actually been formally assigned, the Applicants withheld their rent with a view to ensuring the formalities were completed. I find that the 1991 possession proceedings as between the First Respondents and the Applicants, which I find were flawed in that S&T were not included as Defendants and the statutory continuation of the Lease was not determined, were simply left in abeyance the parties having reached an agreement. The new arrangement agreed between Singh and the Applicants was, as Singh alleges, the grant of a new 15 year tenancy without an increase in rent because work was to be done. The parties never formally finalised that lease however and I have concluded as a matter of fact the Applicants remained in occupation and continued to pay the rent broadly in line with the agreement until this dispute arose. I find it inconceivable that, as the Applicants are forced to suggest, Singh would have declared receipt of the rent, paid tax on it year in and year out and remained so well disposed to the Applicants if he had not been in receipt of any rent at any point after 1986.

95.         In light of the payment of rent and the obtaining of the off licence (which is not disputed) I find as a matter of fact that at all times save for a period between late 1990 and 1992 the Applicants occupied the Property with the agreement of and pursuant to arrangements with S&T, then Singh and then the First Respondents under which they have been tenants albeit by way of equity in the absence of the necessary formalities. Further I find the Applicants’ occupation at all times has had the benefit of protection under the 1954 Act.

96.         Although, in light of the new agreement in 1992 or thereabouts for a tenancy which has not been completed it is arguable any non-payment of rent after the making of the new arrangement which was an oral tenancy, could result in the Applicants’ possession being adverse to Singh and then the First Respondent, given my finding that rent has been paid at least until shortly before the making of this application, the Applicants have not established 12 years adverse possession prior to the introduction of the 2002 Act nor the necessary 10 years to apply under the 2002 Act.

97.         Further given the absence of any entitlement to acquire the freehold by reason of an option or right to buy or any obligation binding Singh that rendered his acquisition and transfer of the freehold wrongful the Applicants have also failed to make any basis for satisfying the conditions in paragraph 5 of Schedule 6 of the 2002 Act.

98.         Accordingly I shall order that the Applicants’ application be cancelled. Subject to the necessary applications and any submissions being made I would be minded to order the Applicants, as the wholly unsuccessful party, to pay the Respondents’ costs. If any party wishes to apply for an order for costs they should make an application in writing, accompanied by a schedule of costs, within 28 days of this judgment and order. Such an application should be served on the other parties who will then have 28 days to respond to the application by way of written submission sent to the Adjudicator’s office, copying any submissions to the applying party or parties. Any response to such submissions should be provided to the office and the other party within 14 days of receipt of the submissions.

99.         There is one other matter I wish mention. I would like to apologise to the parties for the delay in the provision of this Judgment. It has not been an easy judgment to write and due to other commitments having waited for the further authorities Ms Gore wished to submit I was unfortunately unable to deal with it immediately. In those circumstances it has been necessary for me to clear several days to focus on reminding myself of this matter, reading all the additional material and writing this judgment. Unfortunately it did not prove possible to clear sufficient time in my diary to write the judgment at an earlier date.

 

 

 

Dated this 6th day of February 2009

 

 

 

 

 

By Order of The Adjudicator to HM Land Registry