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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Balevents Ltd & Anor v Sartori [2014] EWHC 1164 (Ch) (15 April 2014) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2014/1164.html Cite as: [2014] EWHC 1164 (Ch) |
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CHANCERY DIVISION
The Priory Courts, 33 Bull Street, Birmingham B4 6DS |
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B e f o r e :
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BALEVENTS LIMITED THE ROCKET CLUB RESTAURANT LIMITED |
Claimants |
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- and - |
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ALLAN JAMES SARTORI |
Defendant |
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Mr William Hansen (instructed by Wright Hassall Solicitors) for the Defendant
Hearing dates: 14 - 17, 20 - 24, 31 January and 3 February 2014
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Crown Copyright ©
Mr Justice Morgan:
Introduction
The pavement in front of Quayside Tower
The disputed land
Mr Allan Sartori
Some relevant companies
Mr Reddy and William Reddy
The leases
Mr Sartori's case
The Claimants' case
The procedural history
The witnesses
The use of the disputed land 1974 to 1991
The use of the disputed land 1991 to 1995
Mr Timms
The use of the disputed land from 1996 to 2000
The use of the disputed land from 2000 onwards
Use by whom?
(1) the company operating the club was the person who used the terrace from 1991 onwards;
(2) Mr Sartori did not make any personal use of the terrace at any time;
(3) the company which used the terrace did not do so under any licence or permission from Mr Sartori; there was no credible evidence of any express arrangement granting any such licence or permission and there is no basis on which such a licence or permission could be inferred;
(4) the income in the form of rent from Mr Timms belonged to the company operating the club; it was never due from Mr Timms to Mr Sartori and it was not treated by the company operating the club as if it had been.
Possession of land: the general principles
(1) There is a presumption that the owner of land with a paper title is in possession of the land.
(2) If a person who does not have the benefit of this presumption wishes to show that he is in possession of the land, the burden is on him to show that he is in factual possession of the land and that he has the requisite intention to possess the land.
(3) For a person to show that he is in factual possession of the land, he must show that he has an appropriate degree of physical control of the land, that his possession is exclusive and that he has dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done so.
(4) Whether a person has taken a sufficient degree of control of the land is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed.
(5) The person claiming to be in possession may be in possession through his tenant or licensee, if that tenant or licensee has, on the facts, sufficient control of the land to amount to factual possession.
(6) The person seeking to show that he has had possession of land must show that he had an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title.
(7) The relevant intention is an intention to possess and need not be an intention to own.
(8) The intention to possess must be manifested clearly so that it is apparent that the person now claiming to have been in possession was not merely a persistent trespasser.
(9) If the acts relied on are equivocal then they will not demonstrate the necessary intention.
(10) It is possible in some cases for a person in possession to add to his own period of possession, the period of time during which his predecessor was in possession; this applies in particular where the predecessor relinquishes possession to a person who then takes possession.
Adverse possession: before the Land Registration Act 2002
(1) the land is "very close to the demised land and occupied by the tenant together with the demised land"; and
(2) no different intention is shown by the conduct of the landlord or the tenant within the 12 years of adverse possession; the parties' acts subsequent to the expiry of the 12 year period are relevant only in so far as they cast light on what the parties believed or intended at the end of that period.
Adverse possession: after the Land Registration Act 2002
Was anyone entitled to be registered?
What actually happened
(1) he was the general manager of Balevents;
(2) Balevents was the lessee of the Rocket Club, 258 Broad Street;
(3) that lease was originally granted to JEL, Mr Sartori and Mr Sherwin jointly;
(4) since 24 June 1991, Mr Sartori had always regarded an area of land of 397 square yards adjacent to the Rocket Club "as being my property"; the land was shown marked on an attached plan which showed a strip of land extending along the whole frontage of Quayside Tower and not just 258 Broad Street;
(5) he had never known of any claim of ownership or proprietary rights or occupational rights by any third party since 24 June 1991;
(6) he had not, nor had any colleague at JEL or Balevents, sought consent for any occupational rights over the land;
(7) the land had been used in various ways since 1991 as evidenced by 16 photographs, which were exhibited, and a number of documents, which were also exhibited;
(8) he believed that the exhibited documents evidenced his continued ownership of the land; and
(9) he requested that possessory title be granted to him.
(1) the period of adverse possession was "from 1991"
(2) he did not know the name or details of any known freehold owner of the land in question;
(3) he had had no contact with any freehold owner of the land in question;
(4) he had been a joint tenant under the lease referred to in the first statutory declaration;
(5) the lease was now vested in Balevents; and
(6) he was the general manager of Balevents.
(1) that Mr Sartori had been a joint tenant of the club since 24 June 1991;
(2) that Mr Sartori's father ran an ice-cream stall from the land concerned and it might be the case that Mr Sartori's involvement with the land went back before 24 June 1991.
Mr Cottam stressed that it might be necessary to establish that Mr Sartori occupied the land other than in his capacity as a tenant of the club.
(1) his father had a kiosk on the land;
(2) his father had retired in the 1970s;
(3) Mr Sartori took over from his father in the 1970s;
(4) the kiosk sold sweets and sandwiches and then chicken wraps (the latter may have been a reference to Mr Timms' kiosk);
(5) the kiosk was run by employees.
(1) he was seeking a possessory title only in relation to the strip of land in front of 258 Broad Street; he provided a revised plan to show the land in question;
(2) he had been a joint tenant of the club on 24 June 1991;
(3) since February 2001, he had been the general manager of Balevents;
(4) it was not right that he only considered the land to be his property since June 1991;
(5) his father had occupied the land before a date in the 1970s by using the land for a kiosk selling sweets and sandwiches;
(6) he had acquired the land from his father in the 1970s;
(7) he "now" continues to occupy the land with a kiosk and he continued to sell similar items in addition to chicken wraps;
(8) the period of adverse possession was from the 1970s;
(9) he had enclosed the land with boundary features;
(10) his possession since the 1970s had been without the licence or consent of anyone;
(11) he did not know the name or details of any known freehold owner of the land in question.
The result of the registration
A constructive trust?
Rectification of the register: the law
(1) he has by fraud of lack of proper care caused or substantially contributed to the mistake, or
(2) it would for any other reason be unjust for the alteration not to be made.
If the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify it not doing so: see para. 3(3).
Rectification: discussion and conclusions
(1) that he had been in possession of the land from a date in the 1970s to 1991;
(2) that he had been one of three joint tenants of 258 Broad Street from 1991 to the early 2000s;
(3) that he had been in possession of the land from 1991 to 2009;
(4) that he did not know the identity of the registered proprietor of the land.
The overall result
(1) I will dismiss the claim by Balevents for any relief based on the contention that it is entitled to be registered in place of Mr Sartori.
(2) I will make an order for rectification of Mr Sartori's registered title under schedule 4 to the 2002 Act.
(3) I will hand down this judgment at a hearing which need not be attended by the parties. Following judgment, I will adjourn any consideration of the form of the court's order and any consequential matters. If they cannot be agreed, then they will be considered at a hearing on a date to be fixed.