Chaudhary v Yavuz
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Kitchin,Lord Justice Ward |
| Judgment Date | 22 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1314 |
| Docket Number | Case No: B2/2011/0772 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 2011 |
[2011] EWCA Civ 1314
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COWELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Lloyd
and
Lord Justice Kitchin
Case No: B2/2011/0772
David Brounger (instructed by Stuart Karatas) for the Appellant
Jonathan Gavaghan (instructed by Wiseman Lee LLP) for the Respondent
Hearing date: 25 October 2011
This appeal, from an order of His Honour Judge Cowell in the Central London County Court made on 15 December 2010, poses questions as to whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised. The Land Registration Act 2002 changed the position in this respect, and this seems to be the first time that the point has arisen for consideration in the Court of Appeal on facts governed by the new legislation.
The Claimant, respondent to the appeal, is the owner of 37 Balaam Street, Plaistow, London E13, and the Defendant appellant is his neighbour, owning 35 Balaam Street. On each site there is a building with commercial use on the ground floor and residential use above. Between the two there lies an alleyway, which is included in the title to number 35. Before the events which gave rise to the litigation there was a metal stairway in this alleyway, leading up to a level area at first floor level, including what was described as a balcony along the side of number 37. Access was gained by way of this metal structure to the first floor premises of both number 35 and number 37. At that time there was no other access to the first floor of either building. On the instructions of the Defendant, on 9 April 2009 contractors cut the connection between the stairs and number 37 and removed the balcony along the side of number 37, thereby rendering it impossible to gain access to or from the upper floors of number 37. The Claimant started these proceedings in order to establish that these acts were unlawful, on the basis that he was entitled to a right of way over the staircase and the balcony, which was binding on the Defendant. The judge accepted this contention and granted injunctions accordingly. The Defendant appeals, with permission to appeal granted, as it happens, by myself.
As in the county court, the appellant was represented by Mr David Brounger and the respondent by Mr Jonathan Gavaghan. Both Counsel provided us with clear written and oral submissions and responded admirably to active questioning from all members of the court in the course of the hearing.
The facts
The events which gave rise to the respondent's claim to a right of way occurred early in 2006. Before that time the position on the ground, as described by the judge, was that, beyond an old wooden door at the entrance from the street to the alleyway, there was a wooden staircase against the side of number 35, leading up to the first floor of that building (and thence to the second floor). It was in a poor state, giving rise to health and safety concerns. Number 35 then belonged to a Mr Vijayan (referred to at trial, and hereafter, as Mr Vijay).
In 2005 there was only one upper floor at number 37. The then owner applied for planning permission to extend it, and in July 2005 he sold it to a company called Interface Properties Ltd, owned by Mr Asad Chaudhary, son of the Claimant. Planning permission was granted in August 2005. Mr Asad Chaudhary then undertook building works which involved creating a second floor at number 37. In so doing he went far beyond what was permitted by the planning permission. Until that time, access to the first floor of number 37 had been gained internally.
In January 2006 number 37 was transferred into the name of the respondent Mr Shamim Chaudhary. He lives in Pakistan. His son continued to be responsible for managing the property on a day to day basis.
Early in 2006 Mr Asad Chaudhary and Mr Vijay made an arrangement which suited them both in different ways, under which Mr Chaudhary (or his company) paid for the building of a metal staircase in the alleyway which at first floor level gave access on one side to number 35 and on the other side, over a landing, to number 37. There were to be two first floor flats in number 37 with front doors in the side wall of the building. One of them was near the top of the staircase, the other further back. Therefore the level part of the structure at first floor level continued towards to the back of the building as far as the front door of the back flat. This is the part described as the balcony.
This arrangement was good for Mr Vijay because the new access to the first floor of number 35 was safe and sound. It was good for Mr Chaudhary because he was then able to, and did, dispense with the internal staircase within number 37, thereby creating more space at ground floor level for commercial use in the shop. The judge saw two invoices, one for £5,100 for building the staircase and, I suppose, the first floor landing areas, and the other for £1,250 from another contractor for building a roof structure over the steel staircase and landing. The work had been done by March 2006. Mr Chaudhary was then able to let flats on the upper floors of number 37 to tenants who gained access between the street and the upper floors of number 37 by way of the metal staircase and landing. Needless to say, there was no documentation about these arrangements as between Mr Vijay and Mr Asad Chaudhary (or his father) or Interface Properties Ltd.
Later in 2006 Mr Asad Chaudhary heard that Mr Vijay was planning to sell number 35. Mr Chaudhary was described by the judge as an astute property developer. He realised that he had no document to record any right of access over the staircase and landing. He got solicitors to draft a deed for the grant of an easement which he hoped Mr Vijay would execute. He took it to Mr Vijay's home, and gave it to Mrs Vijay who said her husband would sign it, but he did not. What Mr Chaudhary could then have done, but did not do, was to cause to be registered a unilateral notice under section 34 of the 2002 Act. If that had been done before Mr Vijay's sale of number 35, the purchaser would have taken subject to the rights to which the notice related: see section 29(2)(a)(i), quoted below.
On 11 December 2006 Mr Vijay contracted to sell number 35 to the Defendant, and the sale was completed immediately, the Defendant being registered as proprietor on 23 March 2007. The contract incorporated the Standard Conditions of Sale, 4 th edition, with a provision resolving any conflict in favour of the agreement. The property was sold "subject to the Incumbrances on the Property". Incumbrances were defined as "the entries in the Property and Charges registers of the title except financial charges and subject to covenants, conditions, restrictions, reservations and terms of the lease". There were no relevant entries on the register.
The relevant provision of the Standard Conditions of Sale is condition 3.1 as follows:
"3. Matters affecting the property
3.1 Freedom from incumbrances
3.1.1 The seller is selling the property free from incumbrances, other than those mentioned in condition 3.1.2.
3.1.2 The incumbrances subject to which the property is sold are:
(a) those specified in the contract
(b) those discoverable by inspection of the property before the contract
(c) those the seller does not and could not reasonably know about…"
It is common ground that the metal structure including the staircase and the landing area in the alleyway was itself discoverable by inspection before the contract, and that it would have been apparent on inspection that the landing area led to doors in the side of number 37 at first floor level, from which it could be inferred that access to and from those parts of number 37 was gained over the metal structure.
The Defendant gave evidence at the trial, though the judge recorded that his English was so poor that some of the evidence was given through an interpreter. The judge also recorded that he was a very unsatisfactory witness, so that the judge found it difficult to place any great reliance on his evidence. The Defendant said that he did not notice the stairs or the balcony before completion, but the judge was far from satisfied that he knew that the alleyway was part of what he was buying. He also said he never went upstairs in number 35, which the judge seems to have been willing to accept, since he could only have got upstairs by way of the metal staircase.
The judge recorded that the Defendant, by solicitors, first protested about an alleged trespass on his land in a letter to Mr Asad Chaudhary in February 2007. At one point after that the Defendant locked the gate against the Claimant's tenants, but he unlocked it after intervention by the police. Eventually on 9 April 2009, at a time when, it seems, no-one was present in any of the flats at number 37, the Defendant caused contractors to cut the connection between the top of the metal staircase and number 37 and to remove the balcony against the side of number 37. That led the Claimant to bring these proceedings on 13 July 2009, seeking a declaration, damages and injunctions.
The judge held that the arrangement between Mr Vijay and Mr Chaudhary was not limited in time to the period of Mr Vijay's ownership, as the Defendant had contended. He held that, as between Mr Vijay and Mr...
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