Land registration – Practice and procedure – Adverse possession – Schedule 6 to Land Registration Act 2002 – Applicant claiming title to residential property by adverse possession pursuant to para 1 of Schedule 6 – Registered proprietor dying intestate many years previously – Objection to application received from respondent as son of proprietor – Letters of administration only recently granted to respondent – Whether application barred under para 12 of Schedule 6 on ground that intestate estate subject to a trust – Whether respondent entitled to require application to be dealt with under para 5 – Application allowed
In November 2012, the applicant applied to be registered as the proprietor of a residential property in Ilford on the grounds of 10 years’ adverse possession ending on the date of the application, within para 1 of Schedule 6 to the Land Registration Act 2002.
The registrar cancelled the application on the ground that section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which had come into force shortly before the applicant made the application, had criminalised acts of trespass by “living in” a residential building; and that a person could not rely on criminal conduct to found a claim based on adverse possession. However, the applicant brought a successful judicial review challenge to that decision, with the judge holding that the acquisition of title to land by adverse possession was unaffected by section 144 of the 2012 Act: see [2014] EWHC 1370 (Admin); [2014] EGILR 60; [2014] 2 EGLR 133. That conclusion was subsequently upheld by the Court of Appeal: see [2015] EWCA Civ 17; 2015] PLSCS 20.
The publicity arising from the judicial review proceedings attracted the attention of the respondent, who was the son of the registered proprietor of the property. The registered proprietor had died intestate in 1988 and the respondent was the person entitled to her estate under the intestacy rules, although he had taken no steps to administer the estate until late 2014. He had not received notice of the application from the Land Registry under para 2 of Schedule 6, but on learning of it he submitted a form NAP, that being the form appropriate to a counternotice under para 3, in which he objected to the application and requested that it be dealt with under para 5 of Schedule 6. The matter was referred to the first-tier tribunal (FTT) to determine the issues that arose.
The respondent contended that: (i) by virtue of para 12 of Schedule 6 to the 2002 Act, the applicant could not establish adverse possession because the property had been subject to a trust for part of the relevant period, namely the form of trust which arose over the unadministered estate of a deceased; and (ii) if an application was validly made, then it should be dealt with under para 5, with the result that the application had to fail because the applicant could not meet the additional requirements, in addition to the necessary 10 years’ adverse possession, which had to be fulfilled in a para 5 case.
Held: The application was allowed.
(1) Under normal circumstances, while an estate was being administered it was held by personal representatives, who were not trustees in the conventional sense. Executors of a testate estate, and administrators of an intestate estate, were fiduciaries but did not hold the property as trustees. For a trust to exist there had to be identifiable property, a trustee, and identifiable beneficiaries who could enforce the trustee’s duties. The trustees or administrators, although treated by the court as trustees for some purposes, were not trustees in any usual sense in relation to the unadministered estate, since the trust fund was, by definition, unidentifiable until the administration ended and the beneficiaries were likewise unknown until the administration was brought to an end by the assenting of property to those entitled.
Paragraph 12 of Schedule 6 to the 2002 Act could not be read as referring to a trust in some extended sense. Para 12 assumed a trust that had beneficiaries. Had it intended an extended definition to include personal representative, parliament would have said so explicitly, as it had done in, for example, the Limitation Act 1980 and the Trustee Act 1925. The respondent’s objection based on para 12 therefore failed.
Moreover, in the instant case, there was not even a personal representative, since letters of administration had not granted until late 2014. Throughout the period of adverse possession, the estate was therefore vested in the Public Trustee by virtue of section 9(1) of the Administration of Estates Act 1925, on terms and in circumstances that made it clear that it was not subject to a trust. Not only was there no identifiable fund or beneficiaries, but section 9(3) explicitly provided that the Public Trustee was not subject to any duties in respect of the property: Ayerst (Inspector of Taxes) v C&K (Construction) Ltd [1976] AC 167 distinguished.
Further, the Law Commission, in the consultation paper that had preceded the drafting of the 2002 Act, had anticipated the present situation and taken the view that, where a registered proprietor dies in circumstances in which no steps were taken to wind up the estate, then adverse possession performed a useful role by ensuring that the land remained in commerce and did not become sterile: see para 10.13 of Land Registration for the Twenty-First Century – A Consultative Document (LC No 254 (1998)). The applicant had done a great deal of work on property which had been abandoned for more than a quarter of a century. If property in those circumstances were protected by para 12, then adverse possession would be prevented in precisely the situation where those who designed and drafted the statue thought that it should be possible.
(2) The respondent’s argument based on para 5 of Schedule 6 also failed. Paragraph 2 of Schedule 6, which set out the persons to whom notice of an application under para 1 had to be given, nowhere mentioned the personal representatives of a deceased proprietor, let alone a person who might be entitled to take out letters of administration but had not yet done so. Para 3 allowed no one except those notified under para 2 to give a counternotice.
Personal representatives of a deceased proprietor might be able to bring themselves within para 2 by making use of r 194 of the Land Registration Rules 2003, which enabled them to apply to be a registered as a person entitled to be notified under para 2(1)(d). Where the situation was urgent and they did not yet have a grant, they could apply for a grant ad colligenda bona, an emergency grant authorising them to take action to collect in the deceased’s assets. However, the respondent was neither a person listed in para 2, nor had he arranged to be notified under para 2(1)(d) by making use of r 194.
(3) The respondent could not avoid that conclusion by claiming to have served a counternotice on behalf of the registered proprietor. No relationship of agency could exist in those circumstances.
Nor could he claim that the counternotice was subsequently ratified, once letters of administration were granted. A counternotice had no validity at all unless it was given by a proper person to whom notice under para 2 had been given. Further, there had been no personal representative until long after the time for expiry of the notice had passed, and even at that stage the respondent could not have personal representative could not have served a counternotice, not being one of the persons entitled to notice under para 2: Presentaciones Musicales SA v Secunda [1994] Ch 271 and Adams v Ford [2012] EWCA Civ 544 distinguished.
Nor could the respondent rely on the doctrine that the grant of letters of administration, once issued, would “relate back” to something done before its issue which benefited the estate. The doctrine applied only where the act later validated was an act which could properly have been done by a personal representative. A personal representative was not, as such, entitled to serve a counternotice under para 3, but could do so only where r 194 was invoked, which it was not in the present case. It was the intention of those who drafted the legislation that the scheme of adverse possession should produce a decisive result. The respondent’s argument would introduce an element of “wait and see” which parliament clearly had not intended.
(4) The foregoing conclusion did not offend against the right to respect for possessions under Article 1 of the First Protocol to the European Convention on Human Rights. The estate was able to protect itself against adverse possession save in cases where, as here, no steps had been taken to administer the estate. There was no merit in invoking the Convention in those circumstances.
(5) It followed that the applicant was entitled to make his application under Schedule 6 to the 2002 Act and the respondent was not entitled to give a counternotice under para 3. Effect should therefore be given to the application as if the respondent’s objection had not been made.
James McCreath (instructed by Neumans LLP) appeared for the applicant; Christopher Cutting (instructed by Mullis & Peake LLP, of Romford) appeared for the respondent.
Sally Dobson, barrister