Baker v Craggs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 15 December 2016 |
| Neutral Citation | [2016] EWHC 3250 (Ch) |
| Docket Number | Case No: C30BS519 |
| Court | Chancery Division |
| Date | 15 December 2016 |
[2016] EWHC 3250 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol BS1 6GR
Mr Justice Newey
Case No: C30BS519
Mr Thomas Talbot-Ponsonby (instructed by DWF LLP) for the Claimants
Mr Ewan Paton (instructed by John Hodge Solicitors) for the Defendant
Hearing date: 15 November 2016
Further written submissions: 29 November 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
As a result, it would seem, of conveyancing slips, the owners of some land first sold it to the defendant, Mr Martin Craggs, and then granted a right of way over it in favour of the claimants, Mr Paul Baker and his wife Jodi. The present proceedings are concerned with whether the grant of the right of way was effective.
Basic facts
The basic facts can be stated quite shortly.
Before the events with which I am concerned, Mr Michael Charlton and his wife Maureen owned a property called Waterside Farm in Radstock, Somerset. During 2011–2012, however, they sold most of the farm. They retained, and Mrs Charlton still lives at (her husband having sadly died), some premises now called the Old Stables.
The present litigation arises from certain of the sales that the Charltons entered into: to, respectively, Mr Craggs and the Bakers.
The sale to Mr Craggs reached completion on 17 January 2012. A transfer of that date provided for parts of the farm to be transferred to Mr Craggs for £100,000. The land so transferred ("the Farm") included some 18 acres of fields and barns with an adjacent yard. Mr Craggs was also granted, among other things, a right of way over a driveway leading from the yard. The transfer did not reserve any right of way over the yard in favour of the Charltons.
In accordance with normal practice, Mr Craggs' then solicitors had undertaken a search at the Land Registry which gave Mr Craggs the benefit of a priority period up to 28 February 2012. The transfer was first lodged for registration on 10 February, but on 22 March the Land Registry pointed out that the access route was not shown on the plan annexed to the transfer and asked for the plan to be amended and initialled by the Charltons. The Land Registry agreed to extend the time within which its requisition was to be dealt with to 9 May, but the Charltons' solicitors had still not returned the plan by that date. The application to register the transfer to Mr Craggs was therefore cancelled and a fresh application had to be submitted, with an amended plan, on 16 May. Mr Craggs was subsequently registered as the proprietor of the Farm with effect from 16 May.
In the meantime, however, the Charltons had transferred land to Mr and Mrs Baker. On 9 February 2012, the Charltons contracted to sell the Bakers both the farmhouse (for £625,000) and a barn (for £35,000). The sales proceeded to completion on 20 February, when two transfers were executed in favour of the Bakers. That relating to the barn ("the Baker Barn") purported to grant the Bakers a right of way over the driveway in respect of which Mr Craggs had been granted a similar right and, further, across the yard that had been included in the transfer to Mr Craggs. Although the Bakers' then solicitor had had sight of the transfer to Mr Craggs, it seems clear that none of those involved with the transfer of the Baker Barn to the Bakers appreciated that it provided for the Bakers to be given a right of way over land that had already been the subject of the sale to Mr Craggs.
The transfer of the Baker Barn was duly lodged with the Land Registry and the Bakers were entered on the register as its proprietors with effect from 14 March 2012. The property was, moreover, recorded in the register as having the benefit of the rights granted to the Bakers by the 20 February transfer of the Baker Barn. The Land Registry also, when registering Mr Craggs as the proprietor of the Farm in May 2012, recorded the property as subject to the rights granted in the transfer to the Bakers of the Baker Barn.
The present proceedings were issued on 26 March 2015. They principally raise the question of whether the Bakers do indeed have the benefit of a right of way over the yard at the Farm.
Some common ground
Mr Thomas Talbot-Ponsonby, who appeared for Mr and Mrs Baker, and Mr Ewan Paton, who appeared for Mr Craggs, were at one on some of the legal analysis. Points on which they agreed can be summarised as follows:
i) When the Charltons transferred land to Mr Craggs on 17 January 2012, he at once became its beneficial owner (compare e.g. Scribes West Ltd v Relsa Anstalt [2004] EWCA Civ 1744, [2005] 1 WLR 1847, at paragraph 9(ii)). Legal ownership did not pass, however, until he was entered on the register as the proprietor of the property (see section 27(1) of the Land Registration Act 2002 and the Scribes West case, at paragraph 9(i)). In the meantime, the Charltons retained legal ownership as the registered proprietors;
ii) Had Mr Craggs' initial application for registration of the transfer to him been in order, the grant to the Bakers of a right of way over the yard comprised in the transfer would have been ineffective. The property of which Mr Craggs would have become registered proprietor would not have been bound by the purported grant of the right of way;
iii) In the event, however, Mr Craggs' first application for registration was cancelled. He is therefore to be taken to have had no more than an equitable interest when the Bakers applied for the transfer of the Baker Barn (including the right of way over the yard) to be registered;
iv) Under section 29 of the Land Registration Act 2002, a "registrable disposition of a registered estate … made for valuable consideration" (such as the transfer to the Bakers) "has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration". As a result, Mr Craggs' interest in the property transferred to him cannot prevail over the grant of a right of way over the yard unless it was "protected" when the transfer of the Baker Barn was registered and, on the facts, that could be so only if the interest fell within a paragraph of schedule 3 to the 2002 Act;
v) The relevant paragraph of schedule 3 to the 2002 Act for present purposes is paragraph 2, which identifies one of the rights traditionally referred to as "overriding interests". Paragraph 2 is in these terms:
"An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for—
(a) an interest under a settlement under the Settled Land Act 1925 (c. 18);
(b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so;
(c) an interest—
(i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and
(ii) of which the person to whom the disposition is made does not have actual knowledge at that time;
(d) a leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at the time of the disposition";
vi) None of the exceptions to paragraph 2 can apply. In particular, the exception for which paragraph 2(c) provides cannot be in point given the Bakers' solicitors' knowledge of the transfer to Mr Craggs;
vii) It follows that Mr Craggs' land must be bound by the right of way granted to the Bakers unless (a) Mr Craggs was in "actual occupation" of the relevant land (as he contends, but the Bakers deny) and (b) his interest was not (as the Bakers contend, but Mr Craggs denies) overreached.
The issues
Four issues arise:
i) Was Mr Craggs in "actual occupation" of the relevant land on the relevant date?
ii) Was Mr Craggs' interest overreached?
iii) If the answer to (i) is "Yes" and that to (ii) is "No", should the register be altered?
iv) If, on the other hand, the Bakers enjoy a right of way over Mr Craggs' yard, has Mr Craggs interfered with their enjoyment of the right of way and, if so, what relief should be granted?
Issue (i): Actual occupation?
Legal principles
The authorities seem to me to support the following propositions as regards "actual occupation":
i) The word "actual" in "actual occupation" "emphasises that what is required is physical presence, not some entitlement in law" ( Williams & Glyn's Bank Ltd v Boland [1981] AC 487, at 505, per Lord Wilberforce);
ii) The nature of the relevant property can matter. "Occupation", Lord Oliver explained in Abbey National Building Society v Cann [1991] AC 56 (at 93), is a "concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied". In a similar vein, Arden LJ observed in Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] EWCA Civ 151, [2002] Ch 216 (at paragraph 80), "What constitutes actual occupation of property depends on the nature and state of the property in question";
iii) "Occupation" involves "some degree of permanence and continuity which would rule out mere fleeting presence" (to quote again from Lord Oliver in Abbey National Building Society v Cann, at 93). Lord Oliver went on to say (at 93), "A prospective tenant or purchaser who is allowed, as a matter of indulgence, to go into property in order to...
To continue reading
Request your trial
-
Rita Brenda Knight v Michael Fernley
...AC 54. 22 See above. In this regard, the Appellant placed considerable reliance on the decisions of Newey J and the Court of Appeal in Baker v. Craggs, [2016] EWHC 3250 (Ch) and [2018] EWCA Civ 1126. For the reasons I have given, this decision simply does not apply in the present case, be......
-
Baker and Another v Craggs
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION BRISTOL DISTRICT REGISTRY MR JUSTICE NEWEY [2016] EWHC 3250 (Ch.) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Patten Lord Justice Henderson and Lord Justice Flaux Case No: A3/2017/0140 Be......
-
The registration gap strikes again
...Baker v. Craggs [2016] EWHC 3250 (Ch) the High Court held that land acquired by a purchaser was bound by an easement granted by the seller, without the purchaser's knowledge or consent, after the date of the relevant transfer but before the date that transfer was registered at the Land The ......
-
Mistakes, mispleading and overreaching: understanding title registration and correcting the register
...of a noticeagainst the title, whereas estate contracts are, s.33 LRA 2002. Is it because one is overreachableand the other is not?27. [2017] Ch 295. The point was not pursued in the Court of Appeal, where it was held thatoverreaching had not occurred because the grant of an easement was not......
-
Mistakes, mispleading and overreaching: understanding title registration and correcting the register
...of a noticeagainst the title, whereas estate contracts are, s.33 LRA 2002. Is it because one is overreachableand the other is not?27. [2017] Ch 295. The point was not pursued in the Court of Appeal, where it was held thatoverreaching had not occurred because the grant of an easement was not......
-
The Role and Meaning of 'Occupation' in Schedule 3, Paragraph 2 of the Land Registration Act 2002
...[1969] 1 WLR 286, ChD. 44 [1979] 1 WLR 440. 45 [1997] 2 FLR 71 [426] (Nourse LJ). 46 Rosset (n 38) [118] (Lord Bridge of Harwich). 47 [2016] EWHC 3250 (Ch) [12] (Newey J). 48 [2010] EWHC 2755 (QB) [32], [38] (The Honourable Mr. Justice Ramsey). 74 (2021) Vol. 11 property. Robert Walker LJ i......