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Holmes & Hills Solicitors defend adverse possession claim and subsequent appeal

Posted 13/11/2017

Holmes & Hills Solicitors has successfully defended a complex adverse possession claim (and subsequent appeal) on behalf of two clients, securing the clients’ ownership of the, unregistered, property in question.

Holmes & Hills advised the First and Second Defendant in the case and during the later appeal.

The Claimant’s case:

The Claimant argued, in summary, that he had become aware that the property in question was vacant and began occupying the ground floor in 2000. The Claimant operated a business from the premises until 2005 and then allowed licensees to occupy the premises. The licencees period of occupation ended in 2013.

The Claimant alleged that having occupied the premises as of right, without permission and for a period of more than 12 years he had obtained title under the doctrine of adverse possession.

Therefore, the Claimant asserted that our clients were unlawfully occupying the premises and he sought an Order from the Court enabling him to evict them.

The Defendants’ case:

The circumstances put forward by our clients were that the premises were purchased by them in 1981. In time the premises were let to the Claimant and rent was received from him up until the 2005. Our clients did not formally pursue rent arears due to knowledge of the cessation of the business and the fact there was a personal connection, via family, between the Second Defendant and the Claimant’s son.

The First Defendant gained possession of the premises again in 2013 when the police raided the premises and discovered a cannabis farm operated by the Claimant’s licensees.

Our clients had no knowledge that the premises were being occupied by the licensees or that cannabis was being grown there. It was only after the police raid, and the keys being returned to them, that our clients became aware of the use the premises had been put to.

Our clients therefore asserted that they were the lawful owners, should not be evicted and, further, denied that their title had been extinguished by the Claimant having obtained possessory title.

Summary issues

The Claimant’s claim was therefore that at no time had he ever occupied as tenant and that he (the Claimant) now had possessory title to the premises. The Defendants’ case was that the Claimant was their tenant and therefore could not claim title possessory, notwithstanding that he had not occupied the premises for long enough.

The two positions being, in short, irreconcilable.

The situation was not helped by the title deeds having been lost and inconsistencies between documents produced by the parties.

First Instance hearing:

Judge Patrick Moloney QC who heard the original court case commented on the “…murky absence of documentary formality…” which contributed to an “…implausibility contest” between the parties.

Despite these limitations, Judge Maloney was satisfied that the Defendants’ case was the more probable truthful course of events – he therefore dismissed the Claimant’s claim and an award of costs was made in our clients’ favour.

Appeal:

The Claimant proceeded with an appeal to overturn the first-instance decision. The appeal was presented on four grounds but also late.

The Defendants, on our advice, did not oppose the appeal on the basis that it was out of time. Instead, the appeal was defended on the basis that there was no basis in law to overturn the first-instance decision.

Mr Justice Turner granted permission to appeal and “proceed[ed] forthwith to adjudicate on the appeal on its substantive merits (or lack of them)”.

The appeal was dismissed. The Judgment of Justice Turner in the High Court is, in many respects, damning.

Justice Turner found that:

ground one of the grounds of appeal asserts that the judge “was wrong in law to identify one of the legal issues as being whether the claimant had proven better title to 9 than the defendant”...I was baffled by this criticism and matters became no clearer to me following oral submissions on behalf of the claimant... The ground of appeal is therefore based on an assertion that the judge said the opposite of what he actually did say. When pressed to explain, counsel for the claimant resorted to suggesting that I should simply ignore [it]...

On that basis no judgment would be safe. It ought not to be necessary to point out that appellants do not enjoy the luxury of being able to redact parts of a judgment which they do not like simply because they are wholly irreconcilable with their grounds of appeal.”

Justice Turner further commented that:

It was inevitable in these circumstances that whichever party were to lose the case would, nevertheless, have accumulated a fair quantity of material with which to seek to undermine the plausibility of the other. The remaining grounds of appeal seek to challenge the judge’s findings of fact by identifying numerous respects in which the evidence relied upon by the defendants was in certain specific ways and, when taken as a whole, unsatisfactory.”

and Justice Turner ultimately concluded that:

In all the circumstances, I find myself in agreement with the summary of the position set out in the defendants’ skeleton argument on this appeal: “The judge was aware that there were faults and gaps in the defendant’s proof of title. This was what gave the claimant scope to dispute it… But none of the points made on the evidence (at trial, and thoroughly developed in the claimant’s skeleton argument for this appeal) is explained by any theory better than the conclusions reached by the judge.” I agree. This appeal must therefore be dismissed.”

In commenting on the case, Holmes & Hills’ acting solicitor said that:

From the outset this was clearly an important, but also emotive, case to the clients and I could not turn down their request for help. The premises have considerable value and our clients would in no way contemplate not defending the claim.

My clients always maintained that there was nothing in the claim – they have been vindicated.

In the first instance the clients were shocked by the situation by which they found themselves not only, initially, the circumstances in which they were handed back the keys but to then, three years later, to find themselves defending a claim that they themselves were trespassers(!).
There is always a risk with unregistered titles that a third party will claim ownership without the paper title owner’s knowledge. Losing title deeds then makes defending an adverse possession claim even trickier. Having contradictory evidence as to the property in question (i.e. was it ‘a’ or ‘b’ or, indeed, ‘ground floor, property b’ etc) made piecing the title together less than straightforward, a re-name of the buildings following residential re-development compounded the difficulty.
The challenge for me was to firstly “unpick” the title and then present the available evidence in support of my clients’ position as strongly as possible. Freedom of Information requests and other “outside the box” thinking as to potential other documentary evidence certainly bolstered the defence. I am pleased that the appeal has been dismissed on all grounds. To see that a High Court Judge endorsed our summary of the appeal is, likewise, pleasing. There is pending an application to register the property at HM Land Registry and the clients have now put in place tenancy agreements for the current occupiers. The lessons as to the benefits of both registration and formal tenancy agreements were learnt the hard way here.
On behalf of my clients, I just hope that this puts an end to the Claimant’s claim(s). However, I cannot deny that I have enjoyed the challenges that this instruction has presented.”



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