Rehman v Benfield

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lord Justice Jacob
Judgment Date26 October 2006
Neutral Citation[2006] EWCA Civ 1392
Docket NumberCase No B2/2006/1178/CCRTF
CourtCourt of Appeal (Civil Division)
Date26 October 2006

[2006] EWCA Civ 1392

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE KINGSTON-UPON-THAMES-COUNTY COURT

HHJ VILJOEN

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Lord Justice Jacob and

Lord Justice Neuberger

Case No B2/2006/1178/CCRTF

4KT04998

Between:
Sarfraz Pervez Rehman
Appellant
and
Julie Benfield
Respondent

MR GAVIN HAMILTON and MR OLIVER ISAACS (instructed by Daybells) for the Appellant

MR PAUL STADDON (instructed by Oliver Fisher & Co) for the Respondents

Lord Justice Mummery

The issue

1

The plea of adverse possession in this case turns on the construction and application of the provisions in the Limitation Act 1980 (the 1980 Act) relating to acknowledgement of title. The court below concluded that there was no acknowledgement of title and held that the adverse possession claim to a freehold dwelling house was established. The proprietor of the registered title appeals.

The legislation

2

Section 29 provides for the fresh accrual of a right of action on acknowledgement-

"(1) Subsections (2) and (3) below apply where any right of action …to recover land….has accrued.

(2) If the person in possession of the land …in question acknowledges the title of the person to whom the right has accrued –

(a) the right shall be treated as having accrued on and not before the date of acknowledgment. …"

3

Section 30 contains formal provisions as to acknowledgements-

"(1) To be effective for the purposes of section 29 of this Act, an acknowledgement must be in writing and signed by the person making it.

(2) For the purposes of section 29, any acknowledgement …

(a) may be made by the agent of the person to whom it is required to be made under that section; and

(b) shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged …"

Slade J, in his judgment in Re Companiade Electricidad [1980] Ch 146 at 193F on the construction of similarly worded provisions in section 24 of the Limitation Act 1939, said-

"In my judgment, though no authority has been cited to me which either confirms or rejects such proposition, a written acknowledgement cannot be said to be "made to" a creditor or his agent, within the meaning of section 24(2) unless either (a) it is delivered to the creditor or his agent by or with the authority of the debtor or (b) it is expressly or implicitly addressed to and is actually received by the creditor or his agent.

In my judgment, in case (a) it would not matter that the acknowledgement was not, according to its terms, expressly or implicitly addressed to the recipient. In case (b) it would not matter that the acknowledgement reached the hands of the creditor otherwise than by or with the authority of the debtor. In either case, however, it would be necessary that the creditor should actually receive the acknowledgment before he could rely on it."

4

Slade J also went on to deal with the question of the date on which an acknowledgement is made. He held (p 194B-C) that, on the facts of that case, the balance sheet of a company constituted an effective acknowledgement of the relevant debt, not as at the date on which it was actually signed by the directors or received by the creditor, but as at the date of the balance sheet being the date to which the signature of the directors related and the cause of action would be deemed to have accrued at that date. For this proposition he cited In re Gee & Co (Woolwich) Ltd [1975] Ch 52, 71, per Brightman J.

Proceedings and outline facts

5

The acknowledgement issue arises on the appeal from the order of HHJ Viljoen on 8 March 2006 (wrongly dated 6 March 2006) . He made a declaration that the first defendant, Mrs Julie Benfield (aka Ms Julie Wood) , is the owner in fee simple in possession of 19 Merton Hall Road, Wimbledon, London SW19 (the Property) , of which the claimant, Mr Sarfraz Rehman, had been the registered proprietor since 7 July 1986. The judge ordered that Ms Benfield be registered as the new proprietor of the estate under title number SY213654: paragraph 18(2) of Schedule 12 to the Land Registration Act 2002 (the 2002 Act).

6

Mr Rehman, who appeals with the permission granted by Jacob LJ on 28 June 2006, is a Pakistani national and a qualified lawyer. After living in the UK from 1974 to 1988, during which period he carried on business as a property developer and bought the Property at auction for £71,500, Mr Rehman returned to live in Pakistan because of the ill health from which he still suffers. At the time of the purchase the Property was occupied by tenants from whom Mr Rehman collected rent. His intention was to renovate the Property and occupy it, or part of it, himself. When he left for Pakistan he asked various friends to keep an eye on the Property.

7

The Property ultimately became vacant and was not re-let. It became very dilapidated. Squatters occupied it from time to time. In March 1991 Mrs Benfield and her late husband, Mr David Benfield, who were living in the area and carrying on a mobile catering business, entered the Property. They did so with a view to acquiring title to it by adverse possession. They changed the locks and started to carry out repairs to the Property. From October 1991 they physically occupied the Property as their home along with others unknown. They paid all outgoings, including local authority charges for boarding up the Property when it had fallen into a dangerous condition.

8

Mr Rehman did not issue proceedings for possession against Mrs Benfield until 18 October 2004, that is more than 12 years after the Benfields entered the Property and began to live in it. In her defence and counterclaim Mrs Benfield successfully pleaded adverse possession and counterclaimed for a declaration that she had acquired a possessory title to the Property.

9

9. At the trial Mr Rehman was neither present nor represented. The judge had refused his application for an adjournment. He did not appeal against the refusal of the adjournment nor does he do so now.

Acknowledgement point

10

The relevant provisions of the 2002 Act, which came into force on 13 October 2003, disapplied the period of limitation under section 15 of the 1980 Act in relation to an estate in land which is registered: section 96(1) . Although Mrs Benfield had occupied the Property for more than 12 years expiring prior to 13 October 2003, Mr Rehman contended that Mrs Benfield did not acquire title by adverse possession, as she had acknowledged his title in writing on 19 December 1991 and at some later dates. If this is correct, the time ran afresh for the purposes of the 1980 Act from the date of acknowledgement and the 12 year period had not expired prior to the 13 October 2003.

11

The acknowledgement point, which is crucial to the success of Mr Rehman's appeal, is based on documents procured by the late Mr David Benfield in December 1991. The documents purported to relate to the grant of a lease of the Property by Mr Rehman, but he knew nothing about it at the time.

12

Mr Benfield arranged for a lease and a counterpart lease to be drawn up by a firm of solicitors, ostensibly between Mr Rehman, as the owner of the Property, and Mrs Benfield, as the tenant. Mr Benfield asked his wife to go with the solicitor, Mr Ken Wright of Ponsford Devenish, and to sign a document, which would be for her benefit and that of their children should anything happen to him (He was not in good health then, but lived until 21 September 1998) . He also arranged for a friend, Mr Karaolis, to disguise himself as a Pakistani and to impersonate Mr Rehman to the firm of solicitors (Anna Arthur & Co) , which purported to act for Mr Rehman, and to execute a lease of the Property to Mrs Benfield. Mr Rehman had not instructed anyone to prepare a lease of the Property or to act on his behalf. It was only in 1992 that he instructed his current solicitors, Daybells, to act for him in respect of the Property and that, as a result of inquiries by them, he obtained a copy of the counterpart lease.

13

The first relevant document purports to be a lease of the Property dated 18 December 1991 signed by Mr Rehman. The second document purports to be the counterpart dated 19 December 1991 signed by Mrs Benfield. The counterpart was delivered by her solicitors, Ponsford Devenish, to Anna Arthur & Co, the firm of solicitors in Wimbledon, purporting to act for Mr Rehman.

14

In the lease and counterpart Mr Rehman is stated to be the landlord and Mrs Benfield (called Julie Wood in the documents) the tenant. The term was to be for 7 years at a premium of £12,000 and a yearly rent of £1 to be paid by one payment in advance. The documents were drafted by Anna Arthur & Co. The counterpart was signed by Mrs Benfield (in the name "Wood") at the offices of Ponsford Devenish and her signature was witnessed by a solicitor.

15

In her defence and counterclaim Mrs Benfied alleged that the documents were drawn up so that she would have "an apparently official document to provide to anyone challenging her or her family's right" to occupy the Property.

16

16. In April 1992, in circumstances described in more detail below, Daybells, solicitors actually instructed by Mr Rehman, received a copy of the counterpart lease from Anna Arthur & Co and sent it to Mr Rehman. He did not begin his possession proceedings against Mrs Benfield until October 2004.

The judgment

1...

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