Jimmy Turner v Chief Land Registrar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Roth |
| Judgment Date | 24 May 2013 |
| Neutral Citation | [2013] EWHC 1382 (Ch) |
| Docket Number | Case No: HC12C00275 |
| Court | Chancery Division |
| Date | 24 May 2013 |
[2013] EWHC 1382 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Roth
Case No: HC12C00275
Marc Willers (instructed by The Community Law Partnership) for the Claimant
Tim Buley (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 13 March 2013
Introduction
This Part 8 claim raises a short but interesting point of construction of sect 15 of the Land Registration Act 2002 (the " LRA"). 1
The facts are simple and for the purpose of these proceedings were not in dispute. The claimant, Mr Turner, is, to use his own description in his Particulars of Claim, a gypsy. He says that he meets the definition of gypsies in sect 24(8) of the Caravan Sites and Control of Development Act 1960 as a person "of nomadic habit of life".
Since October 2007, he has resided in his caravan as a squatter in adverse possession of land adjacent to 141 Kingston Road, Leatherhead, Surrey KT22 7NT ("the Land"). The Land is currently unregistered.
On 3 October 2012, he was granted, by his successful appeal against the decision of the planning authority, planning permission permitting the use of the Land as a private gypsy and traveller site. The Land is in a residential area and it is worth recording that his planning application attracted considerable support from local residents. The decision of the planning inspector notes that he submitted for his appeal a petition with 149 signatories, the majority of them occupiers of nearby properties.
Prior to his successful planning appeal, Mr Turner had applied, on 9 May 2011, to the defendant ("the Registrar") to register a caution against first registration in respect of the Land under sect 1That application was refused by letter dated 26 May 2011. The issue in this case is whether Mr Turner is entitled under the LRA to lodge a caution against first registration by virtue of his interest in the Land. Mr Turner seeks a declaration to that effect.
The legislation
The provisions about first registration of title are set out in Part 2 of the LRA. Chapter 1 deals with first registration itself.
Sect 3(2) provides:
"Subject to the following provisions, a person may apply to the Registrar to be registered as proprietor of an unregistered legal estate to which this section applies if -
(a) the estate is vested in him, or
(b) he is entitled to require the estate to be vested in him."
The effect of first registration of freehold estates is addressed in sect 11. In particular, sect 11(4) provides:
"(4) The estate is vested in the proprietor subject only to the following interests affecting the estate at the time of registration—
(a) interests which are the subject of an entry in the register in relation to the estate,
(b) unregistered interests which fall within any of the paragraphs of Schedule 1, and
(c) interests acquired under the Limitation Act 1980 (c. 58) of which the proprietor has notice."
The unregistered interests set out in Schedule 1 are commonly referred to as overriding interests. The one relevant for present purposes is in para 2, "interests of persons in actual occupation", set out as follows:
"An interest belonging to a person in actual occupation, so far as relating to land of which he is in actual occupation,…"
Cautions against first registration, with which this case is directly concerned, are set out in Chapter 2. Sects 15 to 16 provide, insofar as material:
" 15 Right to lodge
(1) Subject to subsection (3), a person may lodge a caution against the registration of title to an unregistered legal estate if he claims to be—
(a) the owner of a qualifying estate, or
(b) entitled to an interest affecting a qualifying estate.
(2) For the purposes of subsection (1), a qualifying estate is a legal estate which—
(a) relates to land to which the caution relates, and
(b) is an interest of any of the following kinds-
(i) an estate in land,
(ii) a rentcharge,
(iii) a franchise, and
(iv) a profit a prendre in gross.
(3) No caution may be lodged under subsection (1)—
(a) in the case of paragraph (a), by virtue of ownership of-
(i) a freehold estate in land, or
(ii) a leasehold estate in land granted for a term of which more than seven years are unexpired;
(b) in the case of paragraph (b), by virtue of entitlement to such a leasehold estate as is mentioned in paragraph (a)(ii) of this subsection.
(4) The right under subsection (1) is exercisable by application to the Registrar.
Effect
(1) Where an application for registration under this Part relates to a legal estate which is the subject of a caution against first registration, the Registrar must give the cautioner notice of the application and of his right to object to it.
(2) The Registrar may not determine an application to which subsection (1) applies before the end of such period as rules may provide, unless the cautioner has exercised his right to object to the application or given the Registrar notice that he does not intend to do so.
(3) Except as provided by this section, a caution against first registration has no effect and, in particular, has no effect on the validity or priority of any interest of the cautioner in the legal estate to which the caution relates."
The position regarding legal estates in English land law was reformed by the Law of Property Act 1925 (" LPA"). Sect 1(1) LPA provides:
"The only estates in land which are capable of subsisting or of being conveyed or created at law are-
(a) an estate in fee simple absolute in possession;
(b) a term of years absolute."
The application of section 15
Before addressing this issue, it is helpful to explain why Mr Turner regards registration of a caution as important. In any action for possession of the Land brought against him, the claimant will need to show a better title. But if the claimant is the registered owner, the legal estate will be deemed to have vested in him as a result of the registration: sect 58. He would therefore readily get a possession order in the County Court. The benefit to Mr Turner of having a registered caution is that he then would receive prior notice from the Registrar of any application for first registration and therefore be alerted to his opportunity to check the applicant's assertion of title. The fact of a registered caution would not give Mr Turner any better rights, since the effect of a caution is procedural only: sect 16(3). But Mr Turner says that it might nonetheless be significant as it would give him the chance to object to a registration which might be defective, eg founded on a false or fraudulent title. Mr Turner's solicitor gave an example in his witness statement of a case of possession proceedings brought against a gypsy who had failed to notice the registration of the land on which she was squatting, but it is unclear whether in that case there was any defect in the claimant's title and, in my view, no particular conclusions can be drawn from that evidence.
It is common ground that Mr Turner is only entitled to register a caution if he comes within one of the two categories in sect 15(1). Mr Turner's primary case was that he comes within para (a) as the owner of a "qualifying estate". From sect 15(2)(b), it is clear that the only qualifying estate that he could claim to own is a legal "estate in land". The Registrar accepts that Mr Turner has an estate in land but contends that it is a freehold estate and therefore registration of a caution is precluded by sect 15(3)(a)(i).
In my judgment, the issue is conclusively determined by sect 1(1) LPA. Only two kinds of estate in land are now capable of subsisting at law. Mr Turner clearly does not have a term of years. Nor is it suggested that he has only an equitable interest, which in any event would not qualify under sect 15. Accordingly, if he has an estate in the Land at all, it can only be an "estate in fee simple absolute in possession". In modern parlance, that is a freehold. His lodging of a caution is therefore precluded by sect 15(3)(a).
On behalf of Mr Turner, Mr Willers sought to argue that what Mr Turner had was not absolute since it is liable to be defeated by the paper owner. Therefore, it was submitted that although Mr Turner had a legal "estate" it was not a fee simple absolute in possession, and thus not a freehold. However, in the first place, sect 1(1) LPA makes clear that there are now only two legal estates and thus the form of estate postulated by Mr Willers does not exist. Secondly, "absolute" as used in the expression "fee simple absolute in possession" is a term of art: see Megarry & Wade, The Law of Real Property (8 th edn, 2012), para 6-013.
I think this line of argument confuses the concept of an estate in land with the concept of title to the estate. It is fundamental to English land law that title (at least to unregistered land) is not absolute but relative. If a squatter remains in adverse possession for 12 years, he acquires a title good against the paper owner under what is now the Limitation Act 1980, sects 15 and 17. But in the intervening period, before the expiration of the statutory 12 years, the squatter, although he may be ejected by the owner of the paper title, is himself protected by his act of possession. He can sue strangers for trespass or nuisance and can convey the land. If he dies, the land will pass under his will or intestacy. As the editors of Megarry & Wade explain at paras 4-008 to 4-009:
"S [a squatter]'s possession at once gives him all the rights and powers of ownership, at least for the purposes of the civil law. S has, in fact, a legal estate, a fee simple absolute in possession. But so also has O [the owner], until such time as his title is extinguished by limitation.
"There is thus...
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...see, for example, City of London Corporation v Fell [1994] 1 AC 458 at 464G-H per Lord Templeman, and Turner v Chief Land Registrar [2013] EWHC 1382 (Ch), [2013] All ER (D) 340 (May), at [13] per Roth J. 29 A point upon which Mr Talbot-Ponsonby, for the Bakers, understandably places some re......