Order for possession – Whether second defendant having overriding interest – No finding as to date of actual occupation – Court of Appeal reviewing evidence – Appeal allowed
By 1991 the property, 75 Minet Avenue, Harlesden, London NW10, was divided into an upstairs flat and a downstairs flat, the freehold of the whole being owned by Mr and Mrs C, who lived downstairs. In 1986 the second defendant, O, who lived upstairs, learned that Mr and Mrs C wished to sell the property and asked them whether she could move downstairs in order to have access to the garden for her dogs. Mr C told the first defendant, T, who was a friend of O, that the property was for sale and T purchased the lease of the downstairs flat for a term of 99 years for £28,000. On August 13 1986 Mr and Mrs C moved out and left the keys with O. On the same day Mr and Mrs P purchased the upstairs flat and moved in on August 30. T purchased his lease with a loan from the plaintiff. The legal charge, dated August 29 1996, was registered. T defaulted. On October 13 1995 the plaintiff sought possession and T did not defend. O claimed that she had an overriding interest and was entitled to remain in occupation. The district judge made an order for possession against T, not to be enforced without leave, and joined O as second defendant. O claimed that she was in actual occupation before August 29 1996 for the purposes of section 70(1)(g) of the Land Registration Act 1925 and also relied upon section 70(1)(k), that the lease was for a term not exceeding 21 years. The district judge held that O had an overriding interest and the plaintiff appealed to the judge, who dismissed the appeal on the ground that O was in occupation as of August 29. The district judge had not been able to find that O was in actual occupation prior to August 29 but found that “as far as the (plaintiff) is concerned she was ensconced with a tenancy agreement prior to the completion of the mortgage”. The judge decided that although the word “ensconced” was not a technical term it must have meant that the tenancy was in existence prior to the mortgage. The plaintiff appealed contending that there had been no evidence upon which either the district judge or the judge could have concluded that O had been granted a tenancy by Mr C .
Held The appeal was allowed.
The crucial issue was whether O had moved downstairs by August 29 so that she was in actual occupation for the purposes of section 70(1)(g). That was a question of fact, which the district judge had had to consider 10 years after the events in question and when memories had dimmed. The judge had adopted the same reasoning as the district judge and there was no passage in his judgment where he held that O had moved downstairs prior to August 29 1986. Since there had been no express finding, the question of fact was to be reconsidered by the court in context. Taking all the facts into account, and considering that it was unlikely that Mr C would have granted a tenancy to O, when he had agreed to sell that flat to T, it would not be right to conclude that O had an overriding interest on August 29 1996. Moreover, it seemed that the district judge thought that an agreement to grant a tenancy was sufficient, but that was not the law.
Hugh Jory (instructed by Dibb Lupton Alsop) appeared for the appellant; Helen Clarke (instructed by Alan Edwards & Co) appeared for the respondent.
