Where common law rights prevail, a court order for possession is required

In an action for recovery of land at common law, the party with the better title to possession will succeed, the Court of Appeal has confirmed in Brake and another v Chedington Court Estate Ltd [2022] EWCA Civ 1302; [2022] PLSCS 165. The appeal concerned the eviction of Mr and Mrs Brake, the appellants, from West Axnoller Cottage near Beaminster in Dorset on 18 January 2019. The Brakes and their business partner were the registered proprietors of the property. The Brakes were made bankrupt in 2015 and the partnership went into liquidation in 2017. The Brakes operated a holiday lettings and events business at West Axnoller Farm, owned by the respondent. They stayed at the cottage when the main house was let out for weddings and held the only key to the property. They were dismissed in November 2018 when they ceased staying at the cottage, although they made occasional visits to it and continued to hold the key. On 15 January 2019, the liquidators of the partnership and Mr Swift, the Brakes’ trustee in bankruptcy, agreed to sell all partnership rights in the cottage, and Mr Swift contracted to sell the cottage to Chedington, also granting a licence to occupy it in common with him. The contract was conditional on Mr Swift obtaining a court order cleaning the registered title. The respondent took possession of the cottage on 18 January 2019 by gaining entry and changing the locks. The Brakes sought delivery up of the cottage and declarations that their exclusion from the cottage was unlawful. The claim failed at first instance. The Brakes had no licence to occupy the cottage and Chedington’s title – as licensee from Mr Swift, the beneficial owner – was superior to theirs. While the Brakes were in possession of the cottage at the date of the eviction, neither they nor their son occupied it as a residence on 18 January 2018. Consequently, the Protection from Eviction Act 1977 did not apply. The Court of Appeal decided that the judge was wrong to dismiss the Brakes’ unlawful eviction claim on the basis that they had better title than Chedington. As two of the three legal proprietors of the cottage, the Brakes were bare trustees, their beneficial interest in the property having passed to Mr Swift. Chedington was authorised by Mr Swift, the beneficial owner, to take possession, but did he have a better common law right to possession than the Brakes? The court could – and probably would – have ordered the Brakes to give up possession of the cottage through administering principles of equity, but Mr Swift did not make such an application and his rights were not recognised at common law. In an action of ejection, the legal title to possession, if it conflicts with the equitable, must prevail: Doe d Butler v Kensington [1846] QB 429. Chedington had no right or title at common law to justify any interference with the Brakes’ exclusive possession of the cottage without a court order. The judge had erred in treating the position on 18 January 2019 as if the competing claims were before the court: they were not. Louise Clark is a property law consultant and mediator