FRANK HENRY BRAZIL (as administrator de bonis non of the estate of James Brazil) and FRANK BRAZIL and EILEEN GILES and FRANK BRAZIL (as administrator de bonis non of the estate Thomas Brazil)
|England & Wales
|17 March 2005
| EWHC 584 (Ch)
|Case No: HC 1999 04595
|17 March 2005
 EWHC 584 (Ch)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London WC2A 2LL
David Donaldson QC Sitting as a Deputy High Court Judge
Case No: HC 1999 04595
This is the official judgment of the court, and I direct that no further note or transcript be made.
Nature of the action
This action concerns a dispute concerning land known as the Quadrant in Ash Vale, Guildford, Surrey, a few miles from Aldershot. It is now divided into two parcels in the Land Registry.
The first is a parcel of land (registration number SY704428 formerly SY678268 and earlier SY631025) registered in the name of the first defendant since 20 January 1993 as proprietor with possessory title, immediately following a conveyance to him from his father. As to this parcel the claimant seeks an order under section 82 of the Land Registration Act 1925 for rectification by the substituted registration of the claimant as proprietor with title absolute.
The second and adjoining parcel (reg no SY688141 formerly 681994) was built on in 1973 by Guildford Rural District council in unusual circumstances which I shall have to examine later. It is sufficient at this stage to state that it constructed a number of flats on this parcel without ever acquiring title, and does not now seek to claim any form of title to the land. As to this parcel, the claimant seeks a declaration that he is entitled to be registered as proprietor, an application for this purpose to the Land Registry in May 1998 by the claimant's now deceased mother having been opposed by the third defendant, who is the first defendant acting in his capacity as the administrator of his father's estate. The third defendant in his turn seeks a declaration that he is the proprietor of this parcel and entitled to be registered as such.
Since the first defendant is also the third defendant, albeit in a representative capacity, and the second defendant no longer plays any role in the proceedings and can be ignored, I shall for convenience hereafter refer to the first and third defendant simply as the defendant.
The claimant and the defendant belong to what are now separate branches of an old and extended Romany or gipsy family. For the purposes of this action it is necessary to track back to their common male ancestor, James Brazil, who acquired the Quadrant by two conveyances in 1896 and 1901. Known for convenience in this action as James 1, he was the great-great-grandfather of the claimant, and the great-grandfather of the defendant, and died in 1923. His numerous children included his first son, another James Brazil, James 2, who died in 1934 and his third son Thomas, Tom 1, who died in 1937. James 2's eldest son was a yet further James Brazil, James 3, who died in 1956. James 3's eldest son was James Thomas Brazil, who died in 1984, and who was in turn the father of the claimant, again his eldest son. Tom l's eldest son was Tom 2, who died in 1997, and whose youngest son is the defendant.
James 1 died intestate. Letters of administration de bonis non of his estate were granted to the claimant in 1993 following an earlier grant in 1974 to James and Priscilla Roberts, who died in respectively 1989 and 1982 leaving the estate unadministered.
James 2 also died intestate (as in their turn did James 3 and James Thomas). Letters of administration of his estate were granted in favour of James 2's daughter Patience in 1961, but she died in 1976 leaving the estate unadministered. Further letters of administration of James 2's estate were granted to Annie Brazil (the claimant's mother) in 1996: she died comparatively recently, again leaving the estate unadministered.
The position as to title to the Quadrant since the death of James 1 in 1923 is not straightforward. Under the law then obtaining, real property of an intestate vested directly in his heir pending the appointment of an administrator, at which moment it vested in the latter by virtue of section 1(1) of the Land Transfer Act, 1897: see at 552 per Lord Cozens-Hardy MR. Under the changed law in 1934 when James 2 died, all the property of an intestate vested in the Probate Judge until the appointment of an administrator: section 9 of the Administration of Estates Act 1925. Since 1994 the Public Trustee has succeeded to the functions of the Probate Judge: section 14 of the Law of Property (Miscellaneous Provisions) Act 1994.
Accordingly, title to the Quadrant was vested in James 1 until 1923 and in James 2 until 1934. Thereafter in consequence of James 2's intestacy title passed to the Probate Judge and after 1961 to Patience, on her appointment as administratrix of James 2's estate. However, in 1974 (two years before the death of Patience) James and Principia Roberts were granted letters of administration of the estate of James 1. Thereupon title would in my judgment have vested in them pursuant to section 1(1) of the Land Transfer Act 1897, preserved for deaths before 1 January 1925 by the Law of Property (Amendment) Act, 1924, section 1 and Schedule 1. On the death of James Roberts in 1989 with the estate of James 1 unadministered, it is unclear whether the title would have reverted back to the route through James 2 and hence to the Probate Judge—the situation does not appear to be covered by any statutory provision. At all events, on the appointment of the claimant as administrator of James l's estate in 1993, section 1(1) of the Land Transfer Act, 1897, would have vested title to the property in him.
A contrary analysis was discussed in argument, namely that once title was in James 2 what matters is solely the administration of his estate, which has been in limbo—and therefore vested in the Public Trustee—since the death of Annie Brazil. I have since been informed that to deal with this possibility the claimant has now applied for grant of letters of administration to the estate of Annie Brazil, which will then enable to obtain letters of administration in respect of James 2's estate, and indeed that of James 3 and James Thomas. Accordingly, all possible avenues of title will be reunited in the claimant as administrator of all four generations of intestate estates. In the circumstances, I do not understand the defendant to take any point on the formal status of the claimant to bring this action.
When it was acquired by James 1, and perhaps for the first half of the 20th century, the Quadrant land was apparently part of a larger area (known as the Outer Quadrant) used by a number of gipsy families to park caravans and graze ponies or horses. James 1, and after him James 2, appears to have made the Quadrant land available to all members of the family to use for these purposes as and when they chose.
From the early 1920s at latest the family acquired another site or sites in Chatham. Thereafter through the 1920s and the l930s birth, death and school records show members of the family of both branches as frequenting or residing both at the Quadrant and Chatham, with—it would appear—some degree of movement between the sites.
In 1937 Tom 1 died while fruit-picking in Kent. His death-certificate shows him to have been then resident in Chatham. His widow then took her children, including Tom 2, to the Quadrant. Some two years later, as Tom 2's sister Mary recounted in evidence, the widow and her family moved to fixed accommodation nearby because the land had been condemned and declared unfit for habitation, and she recollected that the land was then derelict. After the war various of the sons and daughters of Tom 1 began to return there with their caravans and spouses. Benjamin was there intermittently from 1948 to about 1956, as was Annie (Chapman) from 1951 to about 1953. Tom 2 returned in 1951, when he married, and with a brief interval in 1956 remained on the site from then until his death in 1997. His brother Jim Brazil was there from 1956 until his death in 1983, and his widow stayed on until 1995. A further brother Joseph spent a few months there in about 1957. His sister Phyllis lived there from 1958 to 1998, as did another sister Mary from 1955 to 1956 and again from 1967 to 1983. And Annie, Tom 2's mother, also lived on the site from 1958 to her death in 1974.
Tom 2 was the eldest of the many siblings, and in some cases significantly older, having been born in 1920. It was thus natural, particularly in a gipsy context, that he take the lead in the family community on the Quadrant site. It was in particular threatened by council action. The site was regarded as unsanitary and unfit for habitation: I was shown a newspaper report of Jim, Tom and Annie being fined by the local magistrates' court for living on the land.
From about 1953 things began to change. Under Tom 2's leadership a small brick toilet block was constructed and hard-core laid down, and the council was persuaded to classify the land as a caravan site, with permission initially for three and later for four caravans. From this time the council demanded and received payment of rates. This appears to have been done in Tom's name but with monies collected from all those living on the land from time to time.
At some time also a shed was erected on the land. Tom 2 worked to some extent in the scrap metal business, and there is evidence that there was some scrap on the land, but I was told that for the most part the scrap was collected from and delivered directly to customers.
Initially, it appears that the land was substantially unenclosed. To the west, the adjoining coal yard had erected a barrier of old railway sleepers. To the east...
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