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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Turner v Chief Land Registrar [2013] EWHC 1382 (Ch) (24 May 2013) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2013/1382.html Cite as: [2013] EWHC 1382 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
JIMMY TURNER |
Claimant |
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- and - |
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CHIEF LAND REGISTRAR |
Defendant |
____________________
Tim Buley (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 13 March 2013
____________________
Crown Copyright ©
Mr Justice Roth :
Introduction
The legislation
"Subject to the following provisions, a person may apply to the Registrar to be registered as proprietor of an unregistered legal estate to which this section applies if -
(a) the estate is vested in him, or
(b) he is entitled to require the estate to be vested in him."
"(4) The estate is vested in the proprietor subject only to the following interests affecting the estate at the time of registration—
(a) interests which are the subject of an entry in the register in relation to the estate,
(b) unregistered interests which fall within any of the paragraphs of Schedule 1, and
(c) interests acquired under the Limitation Act 1980 (c. 58) of which the proprietor has notice."
The unregistered interests set out in Schedule 1 are commonly referred to as overriding interests. The one relevant for present purposes is in para 2, "interests of persons in actual occupation", set out as follows:
"An interest belonging to a person in actual occupation, so far as relating to land of which he is in actual occupation,…"
"15 Right to lodge
(1) Subject to subsection (3), a person may lodge a caution against the registration of title to an unregistered legal estate if he claims to be—
(a) the owner of a qualifying estate, or
(b) entitled to an interest affecting a qualifying estate.
(2) For the purposes of subsection (1), a qualifying estate is a legal estate which—
(a) relates to land to which the caution relates, and
(b) is an interest of any of the following kinds-
(i) an estate in land,
(ii) a rentcharge,
(iii) a franchise, and
(iv) a profit a prendre in gross.
(3) No caution may be lodged under subsection (1)—
(a) in the case of paragraph (a), by virtue of ownership of-
(i) a freehold estate in land, or
(ii) a leasehold estate in land granted for a term of which more than seven years are unexpired;
(b) in the case of paragraph (b), by virtue of entitlement to such a leasehold estate as is mentioned in paragraph (a)(ii) of this subsection.
(4) The right under subsection (1) is exercisable by application to the Registrar.
16 Effect
(1) Where an application for registration under this Part relates to a legal estate which is the subject of a caution against first registration, the Registrar must give the cautioner notice of the application and of his right to object to it.
(2) The Registrar may not determine an application to which subsection (1) applies before the end of such period as rules may provide, unless the cautioner has exercised his right to object to the application or given the Registrar notice that he does not intend to do so.
(3) Except as provided by this section, a caution against first registration has no effect and, in particular, has no effect on the validity or priority of any interest of the cautioner in the legal estate to which the caution relates."
"The only estates in land which are capable of subsisting or of being conveyed or created at law are-
(a) an estate in fee simple absolute in possession;
(b) a term of years absolute."
The application of section 15
"S [a squatter]'s possession at once gives him all the rights and powers of ownership, at least for the purposes of the civil law. S has, in fact, a legal estate, a fee simple absolute in possession. But so also has O [the owner], until such time as his title is extinguished by limitation.
"There is thus no absurdity in speaking of two or more adverse estates in the land, for their validity is relative. If O allows his title to become barred by lapse of time, S's title becomes the better, and S then becomes "absolute owner". But if O brings his action within the time allowed, he can successfully assert his better title based on his prior possession; as against O, S's legal estate is nothing."
"Implicit in the notion of relativity of title is also the recognition that one person's ownership of a common law freehold in no way forecloses the possibility that some other person (whether squatter or 'true owner') may have an older and better title to a fee simple estate in the land. In a context of consecutive trespasses on the same land, each successive possessor is vulnerable to the assertion of the freehold estate held by any earlier possessor or, indeed, by the 'true owner'."
"... the operation of the statute in giving a title is merely negative; it extinguishes the right and title of the dispossessed owner, and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him."
To which Lord Radcliffe added that this:
"...needs only one qualification: a squatter does in the end get a title by his possession and the indirect operation of the [Limitation] Act and he can convey a fee simple."
In that case in the Court of Appeal, Pearson LJ said of a squatter who had acquired title by adverse possession against a tenant, that the squatter's title:
"...though becoming more valuable by reason of the extinction of the tenant's title, remained in character the same as before, viz, an independent possessory title arising solely from the fact that he had possession. It was not a title transferred by or in any way derived from the tenant.... Nothing had happened which could change the character of [the squatter's] title. Someone else's title was extinguished, but [the squatter] remained simply the person in possession."
"Limitation, so far from being founded on some fictional grant, extinguishes the right of the true owner to recover the land, so that the squatter's possession becomes impregnable, giving him a title superior to all others."
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title."
And noting that the state had acquired not only Mr Clissold's title but also that of the rightful owner who was not in possession (and who had never claimed), Lord Macnaghten continued:
"It could hardly have been contended or contemplated that the Act [ie the Australian statute] should have had the effect of shaking titles which but for the Act would have been secure, and would in process of time have become absolute and indisputable, or that the Governor, or responsible Ministers acting under his instructions, should take advantage of the infirmity of anybody's title in order to acquire his land for nothing."
"The entry of a caution against first registration is not intended to be a substitute for the registration of an estate where such registration is possible."
The Human Rights Act
1998
"Everyone has the right to respect for his private and family life, his home and his correspondence."
(No reliance was placed on Article 1 of the First Protocol.)
"The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances, but it must be substantial."
Note 1 All statutory references in this judgment are to the LRA, save as otherwise stated. [Back] Note 2 That decision has been strongly criticised as regards the application to surrender of a lease by a tenant, but not for these general propositions: Chung Ping Kwan v Lam Island Development Co Ltd [1997] AC 38 at 47. [Back]