NCN: [2015] UKFTT 0154 (PC)

PROPERTY CHAMBER

FIRST –TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF NO 2013/0767/0768

 

BETWEEN

ALEXANDRA SAVOURI

Applicant

and

 

 

THEODORA GEORGA and POULCHERIA GEORGA

 

Respondents

 

Property address: 1 Lascotts Road Wood Green London N22 8JG

 

Title number: EGL177043

 

Before: Judge Professor Robert M. Abbey at 10 Alfred Place London WC1E 7LR on Monday 19 ^th May 201 4

 

Applicants Representation: Mr Pettit of Counsel

 

Respondents Representation: Mr Ollech of Counsel

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

1. KEYWORDS – Application for entry of a Form II restriction and application to remove a Form A restriction – disputed notice of severance – disputed joint tenancy - HELD – insufficient evidence of service of a notice of severance - Land Registry ordered not to make the registration of the restriction in Form II and to remove a Form A restriction

 

Cases referred to

Re 88 Berkeley Road [1971 Ch 648

Kinch and Bullard [1988 4 All ER 650

Re Drapers Conveyance [1969] 1 Ch 486

Sharpley v Manby [1942] 1KB 217

William v Hensman (1861) 1 John &H 546

Carr v Isard [2006] EWHC 2095 (Ch)

 

THE APPLICATION

1. The Respondents are the current leasehold registered proprietors of 1 Lascotts Road London N22 8JG (“the disputed property”) comprised in an absolute registered title EGL 177043. The lease is dated 18 April 1986 for a term of 99 years from 24 June 1985 at an annual rental of £50 and relates to a ground floor flat. The Applicant has applied in Form RX1 for the entry of a Form II restriction against the disputed property. The Applicant is the executor of Panayiota Costopoulou and the main asset in the estate is the deceased claimed interest in the disputed property. The date of the application was 4 October 2012 by an undated Form RX1 seeking the restriction in Form II. The date of the objection was 26 October 2012 and was made by letter dated 25 October 2012.

 

2. The Respondents then subsequently applied in Form AP1 for the removal of a Form A restriction at entry 2 of the proprietorship register of the title to the disputed property. The From A restriction had been registered on 8 September 2009 by way of an application in Form RX1 made by the then registered proprietors who were the Respondents together with Panayiota Costopoulou, (“Ms Costopoulou/the deceased”). The Respondents claim that they did not authorise the submission of the RX1 and that there had been no severance of the joint tenancy prior to the death of Ms Costopoulou on 12 February 2012 and as a consequence the restriction should not have been entered on the register. The Applicant as executor has objected to the application on the basis that the disputed property may be sold without her knowledge and as such objects to the removal of the restriction. The date of this application was 19 February by a form AP1 dated 18 February 2013 and the date of the objection was 27 March 2013 by a letter dated 27 February 2013.

 

3. Subsequently, it was not possible to dispose of the dispute by agreement between the parties and as a result the Registrar referred the matter to the Tribunal pursuant to section 73(7) of the Land Registration Act 2002. It now falls to me to decide upon the merits of the two applications.

 

SUMMARY OF THE APPLICANT’S CASE

4.       The Applicant’s case is set out in a number of documents which comprise the following: -

 

a.        Her statement of case and supporting documents

b.       Witness statements from the Applicant

c.        Witness statements from her solicitor Mr P. Petrou.

 

5.       In her evidence the Applicant set out the history of events. She started by stating that she was the executrix of the late Ms Costopoulou who was one of the three registered proprietors of the disputed property along with the Respondents. She maintained in her evidence that she was a good friend of the deceased and that she had looked after her in the final years of her life. The Applicant maintained that as a result of that help Ms Costopoulou decided she would leave her the flat she owned in Wood Green. The Applicant therefore arranged for her solicitor Mr Petros Petrou to attend at the disputed property in order to see the deceased and to take instructions for a new will. At that time it was ascertained that in fact the disputed property was registered in the three names of the deceased and the Respondents. The Applicant says that this came as a surprise to the deceased but that notwithstanding this Ms Costopoulou “did not wish to cause any further trouble and decided that she would leave her share of the disputed property to the Applicant”.

 

6.       A will was prepared and signed and dated 8 October 2008 appointing the Applicant as the sole executrix and leaving everything to the Applicant. An RX1 form was signed by the deceased and this was sent to the Land Registry by Mr Petrou. The restriction was then entered on the register by the Land Registry. Both the will and the RX1 were signed by Ms Costopuolou with an “X” as it was said that she was illiterate. In her evidence before me the Applicant confirmed that the deceased could neither read nor write as she said that the deceased never went to school. After her death the applications mentioned above in paragraphs 1 and 2 were made and hence the hearing before me.

 

7.       At about the time of the visit by Mr Petrou to the disputed property a letter was written by Mr Petrou’s law firm Petrou Law Partnership to the Respondents addressed to them at the disputed property purporting to sever the joint tenancy, (“the notice of severance”). The date of the copy letter being the notice of severance produced to me was 5 September 2008.

 

8.       Mr Petrou then gave evidence. He said that the solicitors’ letter dated 5 September 2008, the notice of severance, was sent by first class post on 5 September 2008 and that the letter had not been returned by the Post Office. In cross examination he was asked why he had used the address of the subject property for the service of the notice of severance to which he replied that that was the address he has seen on the official copy entries in his possession at the time of the preparation of the notice of severance. He again confirmed that the notice of severance had been posted by ordinary first class post. Again in cross examination he confirmed that he was working and writing on behalf of his client Ms Costopoulou. When it was pointed out that the application to the Registry mentioned all three proprietors as the applicants he said that this was a mistake made by his secretary and that he had never said that he acted for the other two proprietors, the Respondents.

 

SUMMARY OF THE RESPONDENT’S CASE

9.       The Respondent’s case is set out in the following document: -

 

(1)                 Statement of case for the two Respondents with supporting documentation

(2)                 Witness statement of one of the Respondents, Theodora Georga

 

10.   The Respondent’s witness statement confirms that Theodora had authority to give evidence on behalf of herself and her sister Poulcheria. A chronology of events is set out in the statement of case and in essence the Respondents say that they did not received the notice of severance; “Neither my sister not I have any recollection of having received this letter which we note was addressed to us at the property where we have never resided”. The Respondents also confirm that they did not at any time instruct Mr Petrou in relation to the application to register the Restriction. The Respondents also say that in regard to the claim of illiteracy concerning the deceased, she did sign documents including her passport with a signature rather than with an “X”. The Respondents are of the view that the original restriction was registered in error as there had not been any notice of severance given to either of them.

 

THE LAW

11. Before dealing with the factual issues relating to co-ownership, it is necessary to consider the questions of law.

 

The legal position

1. Section 36 (2) of the Law of Property Act 1925 provides as follows:

 

“ 36 (2) No severance of a joint tenancy of a legal estate, so as to create a tenancy in common in land, shall be permissible, whether by operation of law or otherwise, but this subsection does not affect the right of a joint tenant to release his interest to the other joint tenants, or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants:

Provided that, where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon the land shall be held in trust on terms which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.”

 

12. Thus, the law at issue is in relation to what might have constituted an act of severance. The most straightforward method is by one joint tenant serving a written notice of severance on another. This is regulated by s. 36(2) as set out above. Therefore it is clear that the notice does not have to be in a specific format but does have to be in writing. Does it need to be signed? On the face of it there does not appear to be any specific requirement for a signature as the statute simply requires it to be in writing, i.e. to have visibility. The case of Re Drapers Conveyance [1969] 1 Ch 486 would seem to underline the lack of necessity for a signature in a notice of severance. In this case Plowman J actually states that “there is no requirement in the subsection of a signature”, (at p.492).

 

13. I also need to consider what is required to serve a notice of severance. The severance is effective if there is clear evidence that the form of written notice was duly posted to the other joint tenants. The service has to be in accordance with the provisions of s.196 of the Law of Property Act 1925. S. 196 provides:-

 

(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last known place of abode or business in the United Kingdom of the lessee, lesser, mortgagee,mortgagor, or other person to be served, or in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of Part 3 of the Postal Services Act 2011) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

14. It should be noted that by reason of the Recorded Delivery Service Act 1962 recorded delivery was allowed as an alternative to registered delivery. It is not necessary that the notice of severance be read or even received by the intended recipients, see Re 88 Berkeley Road [1971 Ch 648.

 

15. Mr Ollech for the Respondents referred me to the case of Sharpley v Manby [1942] 1KB 217. In essence this case assists with the understanding of the application of s. 196. The section does not preclude a sending of notice by ordinary post. However, where a letter is sent by ordinary post the receipt of the letter by the recipient, in this case the Respondents must be proved. Similarly, Kinch and Bullard [1988 4 All ER 650 applies where it was said that “Provided that it can be established that ….it was delivered to that address then the notice has been validly served at that address provided that it is the addressee’s last known abode or place of business”. Neuberger J. went on to say “It appears to me that the natural meaning of section 196(3) is that, if a notice can be shown to have been left at the last known abode or place of business of the addressee then that constitutes good service even if the addressee does not actually receive it”

 

16. Mr Pettit for the Applicant asked me to consider other ways in which a joint tenancy might be severed, i.e. by a joint tenant severing “by an act operating on his own share”, see William v Hensman (1861) 1 John &H 546. He went on to suggest that the evidence is that Ms Costopoulou did instruct Mr Petrou to sever the joint tenancy and that the notice of severance was issued and this gave rise to the application to the Land Registry and the registration of the restriction. Following this the will was made leaving the deceased’s estate to the Applicant. His argument was that taken holistically all these elements taken together amounted to a severance. In response Mr Ollech made the point that the initial act, the notice of severance, was not effective as a consequence of the manner of the posting and as such all subsequent acts must fail as a result. As for the will he put forward the case of Carr v Isard [2006] EWHC 2095 (Ch) as good authority for the proposition that a will made unilaterally cannot amount to an act of severance.

 

FINDINGS OF FACT

17. Thus, having regard to the evidence and the principles of law, set out above, I have come to the following conclusions – I find that a notice of severance has not been properly served upon the Respondents. In that regard I prefer the evidence of the Respondents where the circumstances are confirmed by the evidence of the two sisters who deny any receipt of the notice of severance. Indeed the address on the notice was the disputed property where the Respondents have never ever resided. Service was by ordinary post while s. 196 of the Law of Property Act 1925 applies. Being by ordinary post it is necessary for the Applicant to prove receipt. She cannot do this and indeed such receipt is denied. (See Re 88 Berkeley Road [1971 Ch 648 and Kinch and Bullard [1988 4 All ER 650).

 

18. As for the suggestion that there was severance by Ms Costopoulou by her act operating upon her own share I am of the view that the law is against this proposition. If, as I have found, the notice of severance was ineffective for non-service then the application and registration that followed it must be a nullities too. Likewise the making of the will is simply not sufficient to amount to an act of severance. Neither death nor the execution of a will before death is a severing event, see Carr v Isard [2006] EWHC 2095 (Ch). So for all these reasons I must find for the Respondents.

THE DECISION

19. I have found that there was no properly served notice of severance. In these circumstances I am of the view that the Applicant’s application for a Restriction in Form II cannot succeed and that the Restriction on Form A should be removed, there be no basis in law for the current registration.

 

20. As to costs an order in that regard normally follows the event. So the general rule therefore is the successful party ought to receive their costs, as is the case in this dispute. Therefore following this determination I will also order that the Applicant do pay the Respondents’ costs from the date of the reference of this dispute to the Tribunal, such costs to be agreed between the parties and failing such agreement to be assessed and I will if required give directions should there be no agreement.

 

 

Dated this Friday 6 June 2014

 

 

 

 

Judge Professor Robert M. Abbey

By Order of The tribunal