Cait Sweeney successful in precedent-setting appeal Nazir & Nazir -v- Begum [2024] EWHC 378

Cait Sweeney acted for the successful Respondents in an appeal, before Freedman J, regarding the operation of and the meaning of a ‘trust’ within the Land Registration Act 2002 and the effect of a registered proprietor’s death on a claim for adverse possession.

THE FACTS

The Appellants sought to appeal the first instance decision in which the Respondent was found to have obtained title to a parcel of land through adverse possession.

The basis of the Appellant’s appeal was that the first instance decision was wrong, as the Respondent could not establish the requisite 10 years of adverse possession due to the operation of the Land Registration Act 2002 (“LRA 2002”) Schedule 6, Paragraph 12 which states:

“A person is not to be regarded as being in adverse possession of an estate for the purposes of this schedule at any time when the estate is subject to a trust, unless the interests of each of the beneficiaries in the estate is an interest in possession.”

The Respondents had been in possession of the land from at least 2012 onwards. The registered proprietor of the land was the Appellant’s father, who had died in 2010. Shortly before proceedings were issued the Appellants obtained Letters of Administration. They argued that their father’s estate, which included the disputed land, was held “in trust” by them as personal representatives and as a result the Respondents could not have been in adverse possession of the land by virtue of Sch 6, Para 12 LRA 2002.

THE APPEAL

The Appellants were granted permission to appeal by Sweeting J on the basis that there was some other compelling reason for the appeal to be heard, namely:

“the uncertainty as to the effect of an administration of an estate upon a period relied upon as adverse possession”.

THE JUDGMENT

As outlined  by Freedman J, there is no precedent from the higher courts on the point raised within the appeal. However, the court concluded that the reference to “trust” within Sch 6 Para 12 LRA 2002, did not encompass a deceased individual’s estate in administration for the following reasons:

• There are fundamental differences between a trust and trustees (in the classic sense) and an estate in administration and personal representatives. Executors or administrators are not trustees in any usual sense of an unadministered estate. Furthermore the trust fund is by definition unidentifiable until the administration ends. The beneficiaries are likewise unknown until the administration is brought to an end by the assenting of property to those entitled.

• If Parliament had wished to extend the ambit of the trust referred to in Sch 6 para 12  to include deceased individual’s estate, it could have done so expressly and easily by incorporating s.68 (17) of the Trustee Act 1925 into s.132 of the LRA as it had done in the Limitation Act 1980.

• If Sch 6 para 12 were treated as extending to a deceased individual’s estate, then the exception to Sch 6 para 12 which provides “unless the interests of each of the beneficiaries in the estate is an interest in possession”  would be difficult to apply. The wording of this exception assists in the construction that beneficiaries are required as in a conventional trust, and that without that, there cannot be a trust for the purpose of Sch 6 para 12.

•  There was nothing within the Final Report of the Law Commission prepared in respect of the implementation of the LRA 2002  to suggest that Sch 6 para 12 was intended to apply to a situation where there is no ‘trust’ in the strict sense of the word recognised by equity and no possibility of a revisionary interest.

It was therefore held that the effect of the death or the registered owner or the estate being in administration during the required ten year period did not operate as a bar to a claim for adverse possession.

A full copy of the judgment can be found here:

https://www.bailii.org/ew/cases/EWHC/KB/2024/378.html