Two company directors, who sold land on the fringe of Epping Forest, have failed in their High Court claim that they retained a flying freehold interest in a hayloft above a garage on the site and should receive damages for trespass following its demolition.
Deputy Judge Launcelot Henderson QC ruled that if they had wanted to retain a small, landlocked, flying freehold to which they had no means of independent access, they should have made that position clear in the terms of the transfer.
Edgar and Joseph Bullman were directors in Pasec Group Ltd, which, in 1975, bought North Farm, High Road, Loughton. The farm included a barn that comprised a garage on the ground floor and a hayloft above, which Pasec used as an office and store.
In 1978, Robert and Joanna Thomas bought the neighbouring North Farm House, parts of which date back to the 14th Century, and immediately began using Pasec’s garage as their own, despite having no title to it.
After 12 years, the Thomases claimed ownership of the garage through adverse possession, and Pasec ultimately consented to their registration as proprietors of the garage, provided the company retained the flying freehold of the hayloft.
In 1991, Pasec sold North Farm to Berkeley Homes (Essex) Ltd for £6.8m, and, in 1995, Berkeley demolished the barn and built the Thomases a new garage.
The Bullmans claimed that the 1991 transfer did not include the flying freehold interest in the hayloft, and sought substantial damages from Berkeley and the Thomases, alleging trespass, wrongful removal of support, nuisance and conspiracy.
Dismissing their claim, the High Court judge preferred Berkeley’s construction of the transfer, and ruled that it did convey the flying freehold.
He said that no conflict arose between the wording of the transfer and the official plan of the land, and the flying freehold therefore fell “fairly and squarely within the wording”.
He continued: “I am fortified in reaching this conclusion by the sheer implausibility, looking at the matter objectively, of Pasec wishing to retain a small, landlocked flying freehold interest, to which they had no means of independent access, and which would be of no conceivable intrinsic value to them, without referring to it expressly in the transfer and without reserving any right of way to it.”
Bullman and another v Berkeley Homes (Essex) Ltd and others Queen’s Bench Division Deputy Judge Launcelot Henderson QC 9 April 2003.
References: PLS News 9/4/03
