FIRST –TIER TRIBUNAL, PROPERTY CHAMBER

LAND REGISTRATION DIVISION

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

LAND REGISTRATION ACT 2002

REF/2013/0712

BETWEEN

 

Dennis Scott

Applicant

and

 

(1)  Arrandene Limited

(2)  Julie Luvaglio

Respondents

 

Property Address: Flats 4 & 5, Stanhope Castle, Bishop Auckland, DL13 2PZ

Title Number: DU333224

 

 

Judge Colin Green

 

At: Darlington Magistrates Court

On: 30^th April and 1^st May 2014

 

Applicant Representation: Charles Scott

 

First Respondent Representation: Henry Stevens of counsel

Second Respondent Representation: In person

 

 

 

DECISION

 

 

Introduction

1.                        This matter comprises two references which have been consolidated under reference 2013/0172 by an order of 15^th August 2013:

            1.1.                        Reference 2013/0172, which arises out of an application by Mr. Scott, the Applicant, to be registered with possessory title in respect of flats 4 and 5 at Stanhope Castle, to which the Second Respondent has objected. The Second Respondent is the registered proprietor of the remainder of the Castle under title DU312217 and raises no competing claim or rights. Its case is simply that the Applicant is not entitled to be registered with possessory title.

            1.2.                        Reference 2013/0656 which is an application by the Second Respondent, Mrs. Luvaglio, who claims to be the owner of flats 4 and 5 under leases that were granted to her and her late husband.

2.                        Although Hewitts solicitors represented Mr. Scott, they ceased to do so shortly before the hearing, at which Mr. Scott was represented by Charles Scott, a non-practising solicitor. On occasions Mr. Scott felt more comfortable addressing me himself. The First Respondent was represented by Mr. Stevens of counsel, and the Second Respondent appeared in person, but did not attend the second day. In the light of her position in this matter (set out below) this was not surprising, and she had given notice at the end of the first day that she might not appear the following day.

Previous proceedings

3.                        There has been a previous reference involving Mr. Scott and Arrandene – Reference 2009/0781 – to which they were applicant and respondent, respectively. I also decided that reference and produced a decision dated 13^th July 2011, on which Mr. Scott places some reliance. That reference arose out of an application by Arrandene for first registration pursuant to a sale of the Castle (excluding certain land), to which the Applicant objected. A number of matters were decided:

            3.1.                        I found that an argument concerning the exclusion of covenants for title in an earlier transfer did not justify cancelling the application for first registration.

            3.2.                        Mr. Scott claimed that he was a mortgagee in possession, but I decided that irrespective of whether this was the case, that also did not provide a proper basis for cancelling the application for first registration. The bulk of my decision dealt with the priority of three charges – one of which had been granted to Mr. Scott – and whether Arrandene should be registered subject to any of those charges. Although the issue of whether Mr. Scott was a mortgagee in possession was, strictly speaking, not relevant to any of the substantive issues that I had to decide nevertheless, I considered that having heard evidence and argument on that issue, and to avoid the point being re-litigated at a future date, I should decide whether or not this was the case. I found that Mr. Scott was not a mortgagee in possession for two reasons.

                              3.2.1.                        Mr. Scott had been in possession of apartments 4 and 5 prior to the creation of his charge, and had dealt with other property within the Castle on the basis that he was entitled to do so as a result of an alleged agreement that he had with Mr. Luvaglio – a previous owner of the Castle – and not due to any rights conferred by his charge. Accordingly, any possession was not referable to his rights as chargee.

                              3.2.2.                        On the basis of the evidence I had heard, he had not been in possession of large parts of the Castle and given the layout of the buildings, this was not a case where possession of part could be equated with possession of the whole.

4.                        Mr. Scott contends that by virtue of what was said in paragraph 21 of my previous decision, there has been a finding in earlier proceedings that he has been in possession of flats 4 and 5 since 1990, and he relies on this in support of his present application. I will quote paragraph 21 in full.

“It is not disputed that Mr. Scott has been in possession of apartments 4 and 5, Stanhope Castle, apartment 5 having been converted into two apartments by him, and apartment 4 having been rented to a friend. However, he has been in possession since 1990, before the Applicant’s Charge was created, on the basis that he had paid Mr. Luvaglio, the then owner, for a right to live there. As stated in Cousins on Mortgages (Third Edition) at paragraph 26-12:

“…even when a mortgagee is admittedly in possession, it must also be shown that he took possession in his capacity as mortgagee without reasonable grounds for believing himself to hold in another capacity.”

Clearly, since Mr. Scott’s possession of apartments 4 and 5 pre-dates the Applicant’s Charge, his possession cannot initially have been in the capacity of mortgagee, and there is nothing to suggest that he ever did anything to indicate a change in the capacity of such possession.”

5.                        It is clear from that paragraph that my finding was based on the unchallenged evidence of Mr. Scott. To what extent is that finding binding on the parties in the present proceedings? There is no doubt that Res Judicata (a form of estoppel) can apply in this tribunal, but in my view the issues that fell to be decided in the previous reference were very different from those that arise in the current reference. In the previous proceedings, the title to flats 4 and 5 were not in issue (as explained in the next paragraph). The relevance of Mr. Scott’s possession of the flats was that his evidence was that this predated the creation of his charge in May 1991, so that his initial possession cannot have been by virtue of his rights as chargee and any possession after the charge would continue on the same footing, in the absence of any clear indication to the contrary.

6.                        Mr. Scott also argues that by asking that flats 4 and 5 be excluded from the Arrandene’s registration, it was accepting his title to those flats. This is dealt with in paragraph 26 of my decision:

“Finally, the application made by the Applicant [this should read “Respondent”] for first registration is in respect of the property described in the transfer of 20^th April 2008, which excludes certain land by reference to colouring on the attached plan. It was accepted that the intention was to exclude apartments 4 and 5, but that due to the very particular layout of those apartments, the description and colouring have not been completely successful in achieving this. I was invited to direct as a condition of the order that the Registrar should disregard certain land from the application, so that the whole of apartments 4 and 5 are excluded. I do not consider that I can do this by way of a condition – which is limited to directing that a specified entry be made on the register, see: rule 41(2)(a) of the Adjudicator (Practice and Procedure) Rules 2003 – but I can do it by way of the substantive order, and directing that effect should be given to the application in part, that is: excluding any part of the application which seeks first registration of any part of the purple or green land on the plan attached to the transfer. I should make it clear that this is the sole reason for my ordering that effect be given to the application in part, rather than in whole.”

7.                        From this it is clear that the reason for excluding any parts of flats 4 and 5 that might have been included on the plan was simply because it was not intended that they be included in the sale to Arrandene, not because it was accepted that Mr. Scott had any kind of title to the flats. 

8.                        I consider that in the light of the above, Arrandene is estopped from contending that Mr. Scott was not in possession of flats 4 and 5 prior to the grant of the his charge in May 1991, which was an essential finding in my previous decision. It is open to Arrandene however, to challenge whether Mr. Scott has been in continuous possession for the requisite period since May 1991. Of course, the issue of adverse possession – which is what Mr. Scott will have to establish for the purpose of his present application to be registered with possessory title – was not an issue dealt with in the previous decision and remains to be determined in respect of any period during which he has been in possession.

Paper title

9.                        Separate leases were granted of flats 4 and 5, both for terms of 999 years.

            9.1.                        A lease of flat 4 dated 20^th March 1984 granted by Messrs. Bennison and Ellis to Reginald and Audrey Gannon.

            9.2.                        A lease of flat 5 dated 14^th September 1984 granted by the same lessors to John and Julie Maddison.

10.                        Mrs. Luvaglio claims to be the owner of these leases. There is an assignment of the lease of flat 5 dated 15^th September 1986 to her and Mr. Luvaglio. Although there is no assignment of the lease of flat 4 available, Mrs. Luvaglio contends that it was also assigned to her and her husband. It is clear that the lease of flat 4 was recognised as an asset of their estates when they were subsequently made bankrupt on separate dates in May 1992 Accordingly, I must deal with matters on the footing that both leases were assigned to them and subsequently vested in their trustee in bankruptcy, Ralph Thorburn. Such property will not have revested in Mr. and Mrs. Luvaglio on their discharge from bankruptcy and in the absence of a disclaimer by the trustee, the leases continue to form part of their bankruptcy estates.

11.                        This means that Mrs. Luvaglio is unable to claim the benefit of the leases of flats 4 and 5. The trustee in bankruptcy subsequently vacated or was released as trustee and has since died (none of the relevant dates were before me), so that it is only the official receiver that is in a position to establish any interest in the leases. I explained the position to Mrs. Luvaglio on the first day, and that she was not in a position to be registered in respect of the leases. I suspect that it is for this reason that she did not attend on the second day. Since the official receiver is not a party to these proceedings, my decision will not be binding on him.

12.                        As regards the freehold title, the relevant history is set out in paragraph 2 of my previous decision.

“2. The history of the title claimed by the Respondent is as follows.

2.1 By a conveyance of 6^th April 1986, John George Bennison sold to Vincent Francis Luvaglio (“Mr. Luvaglio”) the land and buildings known as Castle School, Stanhope.

2.2 Mr. Luvaglio sold that land to Rowhill Builders Ltd (“Rowhill”) by a conveyance of 10^th May 1991. Rowhill granted three legal charges over the property it had purchased:

2.2.1 a legal charge dated 10^th May 1991 (bearing the words “FIRST CHARGE” at the head of the first page) to James Thorburn-Muirhead (“Mr. Thorburn-Muirhead”) to secure repayment of a loan of £42,000.00 (“Mr. Thorburn-Muirhead’s Charge”);

2.2.2 a legal charge dated 11^th May 1991 (bearing the words “SECOND CHARGE” at the head of the first page) to Mr. Scott, the Applicant, to secure repayment of a loan of £63,000.00 (“the Applicant’s Charge”);

2.2.3 a legal charge dated 12^th May 1991 (bearing the words “THIRD CHARGE” at the head of the first page) to Mr. Luvaglio to secure repayment of a loan of £21,500.00 (“Mr. Luvaglio’s Charge”).

2.3 Applications were made to register each of the three charges as class C(i) land charges on 9^th September 1992, and they were each so registered on 11^th September 1992.

2.4 By a Transfer of Mortgage dated 7^th June 1996, Mr. Thorburn-Muirhead transferred the benefit of his charge to Northern Mark Ltd.

2.5 By a rule 72 transfer dated 13^th September 1996, Northern Mark Ltd. sold Stanhope Castle to Inspectpoint Ltd, in exercise of the power of sale conferred by Mr. Thorburn-Muirhead’s Charge, and discharged from such charge. No application for first registration was made at that time.

2.6 By a form TP1 dated 4^th April 2008, Inspectpoint Ltd, acting by its liquidator Robert Linton Patterson (the Official receiver) sold Stanhope Castle, but with certain property excluded (to which I shall return below) to Ferndene Developments Ltd (“Ferndene”).

2.7 By a TP1 dated 20^th April 2008, Ferndene sold the property identified under the previous transfer to the Respondent, which applied for first registration.”

13.                        So far as the Castle (apart from flats 4 and 5) is concerned, Arrandene is now the registered proprietor with freehold title absolute of that land. An issue raised before me in the present case, which was not mentioned at the previous hearing, was that the area in which the Castle is situated became an area of compulsory registration on 1^st December 1987. The consequence of this is that any qualifying conveyance after that date ought to have been registered (s. 123(1) of the Land Registration Act 1925). If not registered within two months, the legal estate will have reverted to the transferor who will have held it on a bare trust for the transferee under s. 123A(5)(a), see: Buckley v. S.R.L. Investments Ltd. and Cator and Robinson[1]. The conveyance of 6^th April 1986 was not subject to such provisions, but the conveyance of 10^th May 1991 was, and no application for registration was ever made. Therefore, Mr. Luvaglio will have held the Castle on bare trust for Rowhill, and although subsequent instruments may have transferred beneficial ownership, the legal estate remained with Mr. Luvaglio. It is difficult to see how the position was changed by rule 72 transfer of 13^th September 1996, as this was also unregistered. Apart from flats 4 and 5, the legal estate in the Castle was vested in Arrandene on first registration, but so far as flats 4 and 5 are concerned, the legal estate would seem to have remained vested in Mr. Luvaglio. It will not have formed part of his bankruptcy estate and vested in his trustee in bankruptcy however, as it is property which Mr. Luvaglio held on trust for another person (s. 283(3)(a) of the Insolvency Act 1986).

14.                        In his closing submissions, Mr. Stevens made various points on the footing that the legal estate in flats 4 and 5 was vested in Rowhill as a result of the non-registration provisions, but on the basis of the above I do not see how this can have been the case. There was never any application by Rowhill to be registered as proprietor of the freehold.

15.                        I should mention at this point that at page 341 of the bundle there is a form TR1, undated but apparently signed by the parties, which purports to transfer flats 4 and 5 from Robert Linton Pattinson, the official receiver and liquidator of Inspectpoint to Mr. Scott. The only evidence I heard in respect of this document was in cross-examination when Mr. Scott said that the transfer from Rowhill to Inspectpoint was a sham and he did not rely on the document. I have therefore, disregarded it.

16.                        It has also been contended by Hewitts on behalf of Mr. Scott, in written submissions provided after the hearing, that the trustee in bankruptcy did in fact deal with flats 4 and 5 and in a letter from the trustee to Mr. Robson of Ferndene Developments limited dated 8^th December 1994, he recognised that there had been some kind of agreement between Mr. Scott and Mr. Luvaglio concerning flats 4 and 5. In fact that letter (page 328 – 9 of the bundle) only concerns flat 5, and makes it clear that the trustee has seen no rental agreement between Mr. and Mrs. Luvaglio and Mr. Scott, and invites Dennis Stafford (Mr. Scott’s previous name) to take action against Mr. Luvaglio if he wishes to pursue such matters. The trustee expresses the view that it would be advantageous to the bankruptcy to sell flat 5 to Mr. Scott, at a discounted price to reflect his occupation and the disputed claim to ownership, but he is simply promoting a compromise solution. The trustee’s views on such matters were also set out in a report prepared by him in respect of Mr. Luvaglio’s bankruptcy at pages 245 – 6 of the bundle, where he refers to having “devoted some considerable time to trying to devise and negotiate a settlement between these two warring parties”. In any event, the trustee did not transfer the lease of flat 5, or flat 4, or make any other disposition in respect of these properties, and it is difficult to understand what relevance such contentions have to the issue before the tribunal, which is whether Mr. Scott is entitled to be registered with possessory title.

17.                        Since the leases of flats 4 and 5 remain in existence, it follows that Mr. Scott will be unable to establish possessory title of the freehold. Any adverse possession by him – which will have been after the grant of the leases – will have been against the leasehold title. Until the leases are brought to an end, time will not run for limitation purposes against the freehold, see: Schedule 1, paragraph 4 of the Limitation Act 1980. Therefore, his application for registration of possessory title of the freehold is bound to fail. Nevertheless, if he can establish adverse possession for the requisite period, it is possible that he could make a make a fresh application in respect of the leasehold title (I put it no higher than that) and therefore I think it appropriate that I should determine the question of adverse possession.

18.                        It was not disputed that until December 1998 Mr. Scott spent lengthy periods in prison, and that the periods between, when he claims to have been in possession of flats 4 and 5, each amounted to considerably less than the twelve years continuous adverse possession required under the 1980 Act. Although during those absences in prison he claims his family occupied the flats, this is not a joint application for possessory title, and there is no basis on which I can find that possession by members of his family amounted to adverse possession by him. Therefore, it is only the period from his return after his most recent prison sentence – in December 1998 – which I need address.

Acknowledgement of title

19.                        Arrandene contends that a letter dated 24^th January 2002 (page 215 of the bundle) constitutes and acknowledgment of title by Mr. Scott, under the provisions of s. 29(2)(a) of the 1980 Act. The letter was written by Mr. Scott’s solicitor to the trustee, and refers to Rowhill having a valid title to the Castle and proposing that Rowhill transfer flats 4 and 5 to Mr. Scott. The letter can be regarded as an acknowledgment of Rowhill’s title, but for the reasons given above, although it might have had beneficial ownership, it was not the legal owner of the Castle, and I do not see how the letter can be an acknowledgment of the leasehold title, vested in the trustee.

The relevant limitation period

20.                        Arrandene also argued that from the time the Official receiver resumed his position as trustee in bankruptcy of the bankruptcy estates of Mr. and Mrs. Luvaglio, the leases of flats 4 and 5 are to be regarded as Crown land, so that the limitation period is thirty, rather than the usual twelve years. Mr. Stevens did not seek to argue that this applied while Mr. Thorburn was the trustee, during which time the limitation period will have been twelve years. Clearly, if Mr. Thorburn vacated or was released as trustee after December 2010, and Mr. Scott had been in adverse possession from his release from prison in December 1998, his twelve years would already have accrued, and the point would have no relevance. It seems unlikely that Mr. Thorburn was still trustee by that date, however. The latest communication from him in the bundle is a letter dated 8^th October 2008 (page 212), on his firm notepaper, in response to a specific query from Mr. Robson concerning the authenticity of a document, which concludes: “I do not propose to waste any more of your time and suggest we leave it to the two gentleman to fight it out; it is not in any event an issue at this time.” This suggests that Mr. Thorburn was no longer involved in the bankruptcies, and it would be surprising if he remained a trustee in respect of bankruptcies over ten years old. I have found the absence of evidence concerning such matters troubling however, and in the light of my finding below as to whether the thirty year period applies, it is not necessary for me to make any findings on the relevant date on which the leases vested in the official receiver.

21.                        The relevant provisions of the 1980 Act are ss. 37(1) and (3) and paragraph 10 of the First Schedule:

“37 Application to the Crown and the Duke of Cornwall.

(1) Except as otherwise expressly provided in this Act, and without prejudice to section 39, this Act shall apply to proceedings by or against the Crown in like manner as it applies to proceedings between subjects.

(2) ...

(3) For the purposes of this section, proceedings by or against the Crown include—

(a) proceedings by or against Her Majesty in right of the Duchy of Lancaster;

(b) proceedings by or against any Government department or any officer of the Crown as such or any person acting on behalf of the Crown; and

(c) proceedings by or against the Duke of Cornwall.”

“Modification of Section 15 where Crown or Certain Corporations Sole are involved

10 Subject to paragraph 11 below, section 15(1) of this Act shall apply to the bringing of an action to recover any land by the Crown or by any spiritual or eleemosynary corporation sole with the substitution for the reference to twelve years of a reference to thirty years.”

22.                        As regards the vesting of the bankruptcy estate in the official receiver, s. 306 of the Insolvency Act 1986 provides:

“306 Vesting of bankrupt’s estate in trustee.

(1) The bankrupt’s estate shall vest in the trustee immediately on his appointment taking effect or, in the case of the official receiver, on his becoming trustee.

(2) Where any property which is, or is to be, comprised in the bankrupt’s estate vests in the trustee (whether under this section or under any other provision of this Part), it shall so vest without any conveyance, assignment or transfer.”

Section 300 provides:

“300 Vacancy in office as trustee.

(1) This section applies where the appointment of any person as trustee of a bankrupt’s estate fails to take effect or, such an appointment having taken effect, there is otherwise a vacancy in the office of trustee.

(2) The official receiver shall be trustee until the vacancy is filled.

(3) The official receiver may summon a general meeting of the bankrupt’s creditors for the purpose of filling the vacancy and shall summon such a meeting if required to do so in pursuance of section 314(7) (creditor’s requisition).

(4) If at the end of the period of 28 days beginning with the day on which the vacancy first came to the official receiver’s attention he has not summoned, and is not proposing to summon, a general meeting of creditors for the purpose of filling the vacancy, he shall refer the need for an appointment to the Secretary of State.

(5) ...

(6) On a reference to the Secretary of State under subsection (4). . . the Secretary of State shall either make an appointment or decline to make one.

(7) If on a reference under subsection (4). . . no appointment is made, the official receiver shall continue to be trustee of the bankrupt’s estate, but without prejudice to his power to make a further reference.

(8) References in this section to a vacancy include a case where it is necessary, in relation to any property which is or may be comprised in a bankrupt’s estate, to revive the trusteeship of that estate after the holding of a final meeting summoned under section 331 or the giving by the official receiver of notice under section 299(2).”

I accept that where there are assets that are unadministered and capable of realisation, there is a vacancy in the office of trustee (s. 300(8)) so that under s. 300(2) the official receiver is the trustee, and those assets vest in him under s. 306(1).

23.                        As to the position of the official receiver, it is a statutory office, described in s. 399(2) in the following terms:

“(2) The Secretary of State may (subject to the approval of the Treasury as to numbers) appoint persons to the office of official receiver, and a person appointed to that office (whether under this section or section 70 of the Bankruptcy Act 1914)—

(a) shall be paid out of money provided by Parliament such salary as the Secretary of State may with the concurrence of the Treasury direct,

(b) shall hold office on such other terms and conditions as the Secretary of State may with the concurrence of the Treasury direct, and

(c) may be removed from office by a direction of the Secretary of State.”

Section 400 provides:

“400 Functions and status of official receivers.

(1) In addition to any functions conferred on him by this Act, a person holding the office of official receiver shall carry out such other functions as may from time to time be conferred on him by the Secretary of State.

(2) In the exercise of the functions of his office a person holding the office of official receiver shall act under the general directions of the Secretary of State and shall also be an officer of the court in relation to which he exercises those functions.

(3) Any property vested in his official capacity in a person holding the office of official receiver shall, on his dying, ceasing to hold office or being otherwise succeeded in relation to the bankruptcy or winding up in question by another official receiver, vest in his successor without any conveyance, assignment or transfer.”

24.                        Although I have not been provided with any case law or commentary directly on point, I have been referred to In re Minotaur Data Systems Ltd[2], a decision of the Court of Appeal. In that case, at the direction of the Secretary of State for Trade and Industry, an official receiver applied to the court for a disqualification order against three company directors under section 6 of the Company Directors Disqualification Act 1986. He had not used a solicitor in the preparation of the case until shortly before the hearing, when he instructed the Treasury Solicitor. The application was successful and the official receiver was awarded his costs. However, the taxing master did not allow any costs prior to the instruction of the Treasury solicitor as the official receiver was not a litigant in person within the terms of section 1(1) of the Litigants in Person (Costs and Expenses) Act1975.

25.                        Aldous L. J. considered whether the official receiver acted in right of the Crown, in the following terms:

“The office of official receiver is not a prerogative office under the Crown, nor is it made by statute a Crown office. It is a statutory office. But although it is generally occupied (we are told) by individuals who have until their appointment been civil servants within the Department of Trade and Industry, and although they continue by law to act at and under the direction of the Secretary of State, they cease on appointment to be civil servants in the proper sense of servants of the Crown employed in the business of government within (in this case) a department of state. In this they can be contrasted with immigration officers, who although originally appointed under statute, have become “part of the Home Office:” see Reg. v. Secretary of State for the Home Department, Ex parte Oladehinde [1991] 1 AC 254 ; and compared with registrars of births, deaths and marriages who, despite similarities in some respects with local government employees, remain statutory office holders: see Miles v. Wakefield Metropolitan District Council [1987] AC 539 But as Beldam L.J. said in Mond v. Hyde [1999] 2 W.L.R. 499 , 515–516:

The official receiver is appointed by the [Department of Trade and Industry] and acts subject to its direction and control. If the D.T.I. was to be regarded in general as the employer of the official receiver and assistant official receiver, the statement in the rules that he is to be subject to the directions and control of the D.T.I. would be unnecessary. I do not think that the relationship between the official receiver and the D.T.I.”— viz. the Crown —“is that of master and servant …”

As a result, it was found that the official receiver was acting in person, not in right of the Crown.

26.                        It is accepted by Mr. Stevens that in the light of this, the official receiver is not an officer of the Crown, or acts in right of the Crown. His submission was that the official receiver is a “person acting on behalf of the Crown” under s. 37(3)(b) of the 1980 Act because s. 400(2) of the 1986 Act provides that the official receiver, in the exercise of the functions of his office “shall act under the general directions of the Secretary of State”.

27.                        I do not accept this, for the following reasons. Merely because the official receiver must act under the Secretary of State’s general directions does not mean that in everything he does, the official receiver is in fact acting pursuant to such directions and/or is acting on behalf of the Crown. In respect of the assets comprised in a bankruptcy estate his duties, rights and obligations are as the result of his position as a trustee in bankruptcy under the insolvency legislation. Any land that is vested in him is not held on behalf of the Crown, but for the benefit of the bankrupt’s creditors. If he were to bring possession proceedings – for which no general direction from the Secretary of State is required – it would be for the creditors’ benefit alone, and he would not be acting on behalf of the Crown. If the Crown were a creditor of the bankruptcy estate, in that capacity the relevant official – perhaps even the Secretary of State – might seek to persuade the official receiver to bring possession proceedings for its benefit as a preferred creditor, but that would not be pursuant to a general direction concerning the functions of the official receiver’s office, but a creditor’s request to the trustee in bankruptcy to exercise his powers as trustee in a certain way. I do not see how possession proceedings brought by the official receiver as a trustee in bankruptcy can be regarded as being brought by him acting on behalf of the Crown, and on the facts of this case, clearly they would not be.

28.                        Accordingly, I find that the usual limitation period of twelve years applies.

Adverse possession

29.                        In respect of flat 5, I am satisfied that Mr. Scott has occupied the flat since about December 1998 and that such occupation will have involved the degree of control required for him to be in possession of the flat. Any consent to his occupation by Mr. Luvaglio will not have survived the bankruptcy, and there is no evidence of either the trustee or the official receiver having consented to his possession. Accordingly, I find that Mr. Scott has been in adverse possession of flat 5 for a continuous period of at least twelve years.

30.                        The position in respect of flat 4 is rather different. This has not been Mr. Scott’s residence, as is borne out by various documents in the bundle after 1998 in which he gives his address as “flat 5” or “apartment 5”. Mr. Scott claims to have rented out flat 4, but apart from his own very general assertion, there is no other evidence to support this, of a kind that one would expect him to be able to produce if there had been lettings. There is no list or schedule of the various tenancies; there are no tenancy agreements (but they might have been created orally) and more importantly, no rent receipts, bank statements showing payments of rent to him, rent accounts, business or personal accounts or tax returns showing the receipt of rental income. The only documents produced are a claim form (unsealed) in which he is the claimant and Phoenix Signs Limited defendant, claiming rent arrears in respect of a tenancy of flat 4 that ran from January 2008 until September 2011; and payment advice from Durham County Council confirming that housing benefit was paid to Mr. Scott in respect of a tenancy apparently to a Stanley hope for the period 1^st October 2011 to 18^th December 20011.

31.                        It was not disputed that flat 4 was let to a Les Jackson from 2003 to 2006. It was disputed however, as who actually let flat 4 to him. Mr. Scott claimed that he did so, but John Robson, the managing agent of Arrandene, gave evidence that it was Ferndene Limited, a company with which he was then involved. I do not think it necessary do decide which of these competing accounts should be preferred, since even if Mr. Scott’s version was accepted, for the reasons I have given, I am not satisfied that there have been successive lettings by him of flat 4 for a continuous period of at least twelve years.

Conclusion

32.                        For the reasons I have given, Mr. Scott cannot establish possessory title in respect of the freehold to flats 4 and 5 and Mrs. Luvaglio has been unable to establish that she now owns the two leases that were assigned to her and Mr. Luvaglio and which vested in their trustee in bankruptcy, so that I must direct the Chief Land Registrar to cancel their respective applications. I have found however, that Mr. Scott has been in adverse possession of flat 5 since December 1998, but I am not satisfied that there is a period of at least twelve years adverse possession in respect of flat 4. 

Costs

33.                        Given the somewhat mixed outcome of this matter, and that there is no clearly successful party, I foresee that there might be some argument over whether I should make an order for costs in favour of one party, and whether this should include the whole or only a percentage of such costs, or simply make no order as to costs. Accordingly, I direct that the parties should file and serve written submissions on costs by 5 pm on 15^th October, and if any party is seeking an order for costs against the other, such submissions should be accompanied by a detailed schedule of legal costs incurred since the date of the reference and all supporting bills and receipts. The parties will then have the opportunity to make written submissions in reply, which should be filed and served by 5 pm on 5^th November. I will then decide the issue of costs and if appropriate, assess the costs myself.

 

 

 

Dated this 29 day of September 2014

 

 

 

 

 

 

BY ORDER OF THE TRIBUNAL