REF/2015/0365

 

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

ADAM DAVID WRIGHT

APPLICANT

and

 

JAMES JOHN KEARNEY

RESPONDENT

 

Property Address: 109 Nansen Close, Old Hall, Warrington WA5 9PX

 

Title Number: CH355434

 

Before: Judge Owen Rhys

 

Sitting at: Coventry Magistrates Court

 

On: 10 ^th February 2016

 

Applicant representation: In person

Respondent representation: Mr Crossley of Counsel instructed by

PEL Solicitors Ltd

 

_____________________________________________________________________

 

DECISION

_____________________________________________________________________

 

1.                   The Applicant is the nephew of the Respondent, and the son of the late Florence Irene Wright ("the Deceased"). By a TR1 dated 13 ^th June 2009 ("the Transfer") the Deceased transferred to her brother, the Respondent, the property known as 109 Nansen Close, Old Hall, Warrington WA5 9PX and registered under title number CH355434 ("the Property"). The document appears to be validly executed, by both the Transferor and the Transferee, their signatures witnessed by Sheila Fairclough of 69, Kremlin Drive, Stoneycroft, Liverpool L13 7BX. The Transfer was not presented to Land Registry for registration until 17 ^th September 2013 - after the Deceased's death in 2010 - and the Respondent was registered as proprietor of the Property from that date. On 20 ^th July 2014 the Applicant applied in Form AP1 to alter the register by the removal of the Respondent from the register, to be replaced by the Applicant as personal representative of the Deceased. The grounds for the application were explained in his covering letter. He alleged that the Transfer was not duly witnessed on execution, and therefore is void under the provisions of Law of Property (Miscellaneous Provisions) Act 1989 ("the 1989 Act"). The Respondent objected to the application, and on 20 ^th May 2015 the Chief Land Registrar referred the dispute to this Tribunal.

 

2.                   Mr Wright, the Applicant, was until recently a practising solicitor, and represented himself at the hearing before me. Mr Dominic Crossley, of Counsel, appeared for the Respondent. Both parties gave evidence orally before me and were cross-examined on their statements. The Applicant also relied on a witness statement from his wife, Jane Hedges, which did not in my view take the matter any further.

 

3.                   The background to the dispute is as follows. The Respondent first presented the Transfer for registration in June 2013. Land Registry raised certain Requisitions, including a request that the Transfer should be dated with the date of execution. Because Land Registry took the view that the Requisitions had not been properly answered, it cancelled the application. The application was then renewed, and supported by a document described as " WITNESS STATEMENT OF SHEILA FAIRCLOUGH " dated 19 ^th August 2013. Paragraphs 2 to 4 of the statement read as follows:

"2. I am the subscribing witnesses [sic] to the transfer deed signed by Florence Irene Wright deceased and the said James John Kearney, the said transfer deed now being produced and shown to me marked "exhibit A".

3. THE said deceased executed the said transfer deed on the 13 ^th June 2009 by signing her name in box 12 of the document as the same now appears thereon, meaning and intending the same as her final signature to the said transfer deed, in the presence of me and of James John Kearney both of us being present at the same time.

4. AFTER the said deceased had so signed I attested and signed on the said transfer deed in the presence of the said deceased and the said James John Kearney.

5. PRIOR to the execution of the said transfer deed by the said deceased, the said deceased read the said transfer deed in my presence and said deceased seemed perfectly to understand the same, and to have full knowledge of the contents of it"

 

4.                   This is a somewhat curious document, for a number of reasons. First, it bears the heading of unissued proceedings in the Chancery Division of the High Court between the Respondent as Claimant, and the Applicant as Defendant, in his capacity as Executor and Trustee of the Deceased. Secondly, although it is introduced by the words " I, Sheila Fairclough ... MAKE OATH AND SAY THAT....", the document has not been sworn or declared before a solicitor or other competent person, and is neither an affidavit nor a Statutory Declaration. Nor is it a witness statement, since it does not bear a statement of truth. Thirdly, its phraseology suggests that the deponent was confirming the due execution of a will rather than a transfer deed. Nevertheless, Land Registry was satisfied with this document as providing sufficient evidence as to the date of execution of the Transfer, and the Respondent was registered as proprietor on 17 ^th September 2013, following a subsequent application by the Respondent.

 

5.                   On 20 ^th July 2014 the Applicant applied to Land Registry in Form AP1 to alter the register of the Property by removing the Respondent's name, and substituting his own name, as personal representative of the Deceased. Included in support of the application was a " SECOND WITNESS STATEMENT OF SHEILA FAIRCLOUGH", dated 10 ^th June 2014. This is also headed with the title of unissued High Court proceedings - this time, in a different District Registry and with the parties reversed. The same form of words is used - "I Sheila Fairclough...... MAKE OATH AND SAY THAT:" but again it is neither an affidavit nor a Statutory Declaration, nor a witness statement. The statement consists of 12 numbered paragraphs, which include the following:

"2. I confirm that on the date I believe to be 9 ^th June 2009 I attended at the home of Florence Irene Wright 59 Kremlin Drive where Mrs Wright said "we need your autograph Sheila".

3.       The document was partly covered up.

4.       It was the only document I have ever signed for Florence Irene Wright or James John Kearney or at 59 Kremlin Drive.

5.       I was not told until afterwards what the document was.

6.       Further to the statement I made on 19 ^th August 2013 I wish to clarify the following.

7.       I made the statement at the request of the defendant James John Kearney the purpose of which I understood was to confirm the date of my signing of the document being what I believed to be 13 ^th June 2009.

8.       The statement was posted to me and I returned it by post. Nobody went through or explained the statement to me.

9.       I have since examined the statement dated 19 ^th August 2013 in detail and can confirm that paragraph 3 is in fact incorrect in that the said deceased Florence Irene Wright did not sign or execute the document in my presence on that date. I did not witness Mrs Florence Irene Wright executing the document by signing as it states.

10.   I further confirm that neither Mrs Florence Irene Wright or Mr James John Kearney put pen to paper in my presence on that occasion.

11.   I also confirm without any doubt whatsoever that at no time did I see or witness, nor have I ever seen or witnessed Mrs Florence Irene Wright or Mr James John Kearney sign, execute or put pen to paper to, the document I signed on 13 ^th June 2009."

 

6.                   Mrs Fairclough also made a third "witness statement" - suffering from the same formal defects as the first two - which is stated to be for the purposes of " an application under the Trusts of Land and Appointment of Trustees Act 1996 for a declaration as to who is the legal owner of the property at 109 Nansen Close ....." In this document, she provides further details of the occasion when she said that she signed a document, and repeats that she did not in fact witness the signing of that document by the Deceased and the Respondent.

 

7.                   The grounds of the Applicant's AP1 application are simple. He claims that the Transfer was not validly executed, because the signature of the Deceased was not witnessed by Sheila Fairclough and the deed is therefore a nullity. The Statement of Case repeats this claim. There is no other ground for the relief claimed, namely the removal of the Respondent as proprietor. However, in his witness statement the Applicant provides a wide-ranging and detailed account of the alleged background to the Transfer. In summary, his evidence, as I understand it, is that the Deceased wished to protect the Property from a possible recovery by the Benefits Agency or similar entity, in relation to benefits and pensions credits that she had received. According to the Applicant, as she began to contemplate her demise, she sought ways of achieving this end and decided to vest the Property in the Respondent to be held on some sort of secret trust. This is his explanation for the email which he sent to the Respondent on 6 ^th September 2008 in which he says this: "She wants to leave Renee's flat to you and wants to transfer it now. To do so you will need to download a TR1 --- prior to printing you can insert the following details CH255434 109 Nansen Close Old Hall Warrington and the attestation clause below in para 13 then sign your part and post it to mum. Do not date & witness must be independent."

 

8.                   It is clear that the Transfer was sent to Land Registry for registration by the Respondent in July 2009, since there is correspondence referring to it. Land Registry rejected the application, because there was no AP1, nor any identity evidence as required. The Respondent sent this correspondence to the Applicant - a practising solicitor at this time - and asked for advice. In response the Applicant asked for some time to " think about this" In the same email (11 ^th August 2008) the Applicant mentions the possibility of a trust deed " which just confirms that mother is holding it in trust for Renee to have a lifetime interest and this trust then passes to u..." Renee was a lady who the Deceased regarded as her mother, and resided at the Property until her death. This seems to be the only mention of a trust in the correspondence.

 

9.                   The Respondent's case is that he was present when the Transfer was executed, at the Deceased's home. He says that both he and the Deceased signed it in the presence of Sheila Fairclough, who also signed the Transfer as their witness. He says that the Property was given to him outright and denies that it was intended that he should hold it on trust. He also says that two earlier TR1 deeds had been executed and given to the Applicant to effect registration, but he had failed to do so. He points to the email correspondence in August 2009 as demonstrating that he was entirely open with the Applicant as to the transfer of the Property to him.

 

10.               Sheila Fairclough did not give evidence to the Tribunal, either in the form of a witness statement, or orally at the hearing. In fact, she sent an email to the Respondent's solicitors in November 2014 stating that she wished to withdraw "both" statements and no longer wished to have anything to do with the dispute. Neither party served a witness summons upon her.

 

11.               The dispute before me is a narrow one. I must decide whether the Transfer was validly executed. What evidence is available? The only witness who was present when the Transfer was signed by the Deceased is the Respondent. He says that the signature was witnessed by Sheila Fairclough. The Applicant was not present and can give no evidence regarding execution. The attesting witness herself has not given evidence, although she has made a number of conflicting statements which she has signed. The Transfer itself contains, at Panel 12, the words " Signed as a deed by Florence Irene Wright", then a space for the signature, and below that the words " in the presence of witness". Sheila Fairclough's signature appears next to those words. It would be almost impossible for her to have signed there without seeing the words " in the presence of witness", thus reinforcing the obvious point that a witness is just that - someone who observes another person signing a document. Even if I discount the evidence of the Respondent - and I have no reason to do so, since I regard his evidence as credible - I do not consider that the conflicting statements of Sheila Fairclough can outweigh the apparent regularity of the attestation of the Transfer. The burden of establishing that the attestation clause was false lies with the Applicant, and in my judgment he has no sufficient evidence to support his contention. I should add that the allegations made by the Applicant with regard to the beneficial ownership of the Property have no bearing on the narrow issue before me. Although I requested the Applicant to limit his cross-examination to this narrow issue, he went much further than was required. However, for the reasons given, this evidence is not relevant to the matter in hand.

 

12.               It follows that I shall direct the Chief Land Registrar to cancel the Applicant's application in form AP1 dated 20 ^th July 2014. I see no reason why the Applicant should not pay the Respondents' costs. If the Applicant wishes to make any submissions on the amount claimed, he should do so by Friday 8 ^th April, serving a copy on the Respondent.

 

Dated this 24 ^th day of March 2016

 

 

 

BY ORDER OF THE TRIBUNAL