Wall v Collins and another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE MOSES,LORD JUSTICE CARNWATH,Lord Justice Hooper,Lord Justice Mummery,Lord Justice Carnwath,Lord Justice Moses,Lord Justice Munby
Judgment Date05 May 2010
Neutral Citation[2006] EWCA Civ 1437,[2007] EWCA Civ 724,[2010] EWCA Civ 677,[2007] EWCA Civ 444,[2010] EWCA Civ 90
Docket NumberCase No: A3/2009/1847(A),Case No: B2/2006/1155,B2/2006/1155,Case No: A3/2009/1847
Date05 May 2010

[2006] EWCA Civ 1437

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHANCERY DIVISION

MANCHESTER DISTRICT REGISTRY

(HIS HONOUR JUDGE PELLING)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Moses

B2/2006/1155

Wall
Claimant/Appellant
and
Collins & Anr
Defendant/Respondent

THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

LORD JUSTICE MOSES
1

I am going to give you leave to appeal but I am desperately keen that there should be some organisation, as it were, in relation to how the appeal is to be advanced because if there is going to be a mass of paper, it is just going to prolong it, make it worse and of course increase the cost, which would be disastrous if you lose. What I am going to say is I shall give you leave to appeal, but it is very important that within 28 days of today you amend your skeleton argument, so as to make it very clear what points you want to make.

2

I am not giving you leave to adduce fresh evidence. You will have to apply to the court to adduce that evidence and you have to make it very clear what that evidence is, with the written statements of those who produce whatever document it is, and make it clear that that is part of your application. It may well be that those in charge of the hearing, and I indicate this now, will want some at least preliminary consideration for giving directions as to how to manage before the hearing; that can no doubt be done in writing, as I think you have come down from Manchester for this hearing.

3

So we may not need an oral hearing for directions. It is very important there should be some sort of consideration as to the management of the conduct of the appeal before the hearing, after the time has expired for the respondent to put in his response. But it is no good listing it without somebody having thought about directions.

4

I am only going to give you a day. The appeal will only last one day, so that makes the directions for management even more important. There should be three judges. One of the judges should be a judge experienced in Real Property Law.

Order: Application granted.

[2007] EWCA Civ 444

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHANCERY DIVISION MANCHESTER DISTRICT REGISTRY

His Honour Judge Pelling QC

5bl01209

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Mummery

Lord Justice Carnwath and

Lord Justice Hooper

Case No: B2/2006/1155

Between
Keith John Wall
Appellant
and
Brian Collins & Anr
Respondents

Keith John Wall (in person) & Mrs Wall (McKenzie friend) for the Appellant

Ian Foster (instructed by Messrs. Widdows Mason) for the Respondents

Hearing date : Wednesday 4th April, 2007

Approved Judgment

LORD JUSTICE CARNWATH

Introduction

1

The appellant, Mr Wall, is the registered owner of No 231 Leigh Road, West Houghton in Bolton. Mr and Mrs Collins are registered owners of the adjoining property to the south, No 233. They are semi-detached houses, lying on the east side of Leigh Road. They also have access over Back Street, which runs along the rear of their properties, parallel to Leigh Road. Back Street and Leigh Road are public highways. Mr Wall is also the registered owner of a leasehold interest in land to the rear of his property (“the Back Land”) on which he has built a garage.

2

The current dispute concerns Mr Wall's claim to a right of way over a passageway (referred to in the judgment as “South Road”), which runs along the south side of No 233, and provides a link between Back Street and Leigh Road. The judge had to consider a number of other issues, including allegations of unneighbourly conduct on both sides, but happily we are not concerned with them. We owe a considerable debt to the judge for having enabled the outstanding issues to be cut down to this extent, after what must have been a very difficult case to handle.

3

Mr Wall appears before us in person, as he did below. Mr Ian Foster appears for Mr and Mrs Collins. Without (I hope) offence to Mr Wall, I would observe that his enthusiasm for legal research and his anxiety to advance his case on as many fronts as possible might have risked diverting attention from the relative simplicity of his best points. He and we should be particularly grateful to Mr Foster for his help in refining the issues.

The history of the properties

4

The conveyancing history starts in 1910 with the grant of a lease by the freeholder, Mr Olliwell, over the undeveloped sites of the two properties for a term of 999 years from 12 th May 1909 (“the 1910 lease”). The lease was granted to a Mr Hurst, who covenanted to build two houses on the land. It contained a declaration that —

“… the streets so far as the same be opposite to or extend over the said plot of land hereby demised may at all times during the said term be used as foot carriage and drift ways by the lessee and his tenants, lessees ad others deriving title through him…as well as the mortgagee and lessors, their respective heirs and assigns.”

As the judge found, South Road did not exist at the time of that lease, and there was nothing to indicate that it was within the contemplation of that clause (para 10).

5

On 25 February 1911, following the construction of the houses, the unexpired lease in respect of number 231 was assigned to a Mr Morris. Mr Hurst retained the leasehold interest in number 233. The assignment to Mr Morris was granted

“TOGETHER with the right for the purchaser his executors administrators and assigns and tenants and occupiers for the time being of the premises hereby assigned and conveyed to pass and repass on foot or with horses carts and other vehicles over and along the road coloured yellow on the [plan annexed thereto] for the purposes of the convenient use and enjoyment of the premises hereby assigned and conveyed and for no other purpose whatsoever”.

The “land coloured yellow” included Back Street and South Road. It is not in dispute that from that time until at least 1986 the occupiers of No 231 enjoyed a right of way over South Road.

6

In 1946, the lease of No 231 was assigned to Mr. and Mrs. Green. At about the same time they took possession of the Back Land, which was owned by a third party whose name is unknown. They paid rent on the Back Land until 1970, but remained in occupation thereafter without paying rent. On 1 st January 1974 Westhoughton became an area of compulsory registration of title. In August 1977 the freehold reversionary estate in both properties was transferred to a company called Mardonian Limited subject to the 1910 Lease. This transfer led to the first registration on 14 th September 1977 of the freehold title to both properties.

7

The next important events came in 1986. It is common ground that up until that time the freehold of the two plots (including South Road) was in common ownership. In April 1986 Mr. and Mrs. Green acquired the freehold estate in No 231 from the common owner, and became registered as freehold proprietors, expressly subject to the 1910 Lease. At about the same time they swore a statutory declaration claiming a right to the Back Land by adverse possession. They became the first registered owners of a leasehold interest in that land under a separate entry, on the basis (as is noted in the register) that it was held “as an accretion to” the lease of No 231. The judge commented on the current status of the Back Land:

“Normally adverse possession established by a tenant is established for the ultimate benefit of the freeholder. It seems likely that the effect of the transfer to the Greens of the freehold in number 231 was that the leasehold interest in the back land merged into the freehold interest when the freehold was transferred to the Greens with the result that the Greens became the freehold owners of the back land from that date. However, this has yet to be reflected on the register.” (para 14)

8

Turning to No 233, there is no information as to the chain of succession between 1911, when it was retained by Mr Hurst, and 1986. It seems that by 1986 gates had been erected at both ends of South Road, but not so as to prevent its use by the owner of No 231. In September 1986 Mr and Mrs Collins were registered as first registered proprietors of the leasehold estate in No 233 (including South Road). They did not acquire the freehold of No 233 until June 1995, when they were registered as the freehold proprietors of the Property, expressly subject to the 1910 Lease. They remained registered leasehold proprietors until August 2004, when the leasehold title in No 233 was closed. It is common ground that the leasehold title was then merged in the freehold.

9

Meanwhile, in March 1990, Mr. and Mrs. Green had transferred their interests in No 231 to Elaine Glennon, their daughter, by way of gift. She was registered in place of Mr. and Mrs. Green as the proprietor of the freehold in No 231 (still expressed to be subject to the 1910 Lease), and the leasehold interest in the Back Land.

10

On 23 rd February 1999 she transferred to Mr Wall her registered freehold title to No 231 and her registered leasehold title to the Back Land. This led to Mr Wall's registration as proprietor in respect of each of those titles. The leasehold interest in No 231 was not separately registered, and the reference to the 1910 Lease in the Charges Register of the title was removed. According to...

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10 cases
  • Pall Mall 3 Ltd v Network Rail
    • United Kingdom
    • Chancery Division
    • 5 July 2021
    ...an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute”. 33 The issue before the court in Wall v Collins [2007] EWCA Civ 444, [2007] Ch 390 concerned a merger of a leasehold and freehold. Conventional wisdom was that the easement was lost as i......
  • Clare Elizabeth Annetts v Nureni Adetunji Adeleye
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 March 2018
    ...He submits that, in the absence of direct authority, the matter has to be decided as a matter of common sense. 33 Mr Bredemear relies on Wall v Collins [2007] Ch 390 as authority for the proposition that, if a lessee acquires the freehold, rights of way conferred by the leasehold interest a......
  • Graham Gore v Kishwar Naheed and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 24 May 2017
    ...to its use for the purposes of Whiteacre. This ground of appeal accordingly fails." 37 The other relevant case is Wall v Collins [2007] Ch 390. As in the present case, one of the issues was whether a right of way could be used to access some adjoining land which had been acquired by th......
  • Ellen Mary Alford (Claimant/Appellant) v Anthony Peter Broadribb Hannaford and Another (Defendants/Respondent)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 October 2011
    ...the tenant with the permission of the landlord during the currency of the lease: see International Tea Stores Co v Hobbs (1903) 2 Ch 165; Wall v Collins [2007] EWCA Civ 444. 36 But where there has not been diversity of occupation prior to the sale, the generally held view is that s.62 can o......
  • Request a trial to view additional results

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