[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kornhauser, R (on the application of) v Land Registry [2012] EWHC 751 (Admin) (18 November 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/751.html Cite as: [2012] EWHC 751 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 November 2011

1. MR JUSTICE EDWARDS-STUART: This is a renewed application for permission to apply for judicial review. It is a challenge to a decision of the Land Registry.
2. Since 27 November 1995, Mr Kornhauser has been in occupation of a flat under an assured tenancy agreement with the Notting Hill Housing Trust at 96 Harwood Road in Fulham, London. Mr Kornhauser says that the flat consists of two rooms, a kitchen, a bathroom, an external store on a landing and part of the rear garden. It is in an end-of-terrace house. There are two other flats in the house, one upstairs and one below Mr Kornhauser's flat. He says that they have been empty and boarded up, and have been for several years because the landlord seems to have no money or inclination to carry out any repairs.
3. The effect of this is that Mr Kornhauser is the only person who has been living in this house for the last few years. He says in his written submissions that during this period his "possession of the property became sole", and that the other flats are "under the ambit of his occupation which he enjoys".
4. I have to say I do not really understand these two statements. It seems to me they are either meaningless or they are wrong. The fact that a person is a tenant of one flat in a building does not give him any rights over the other flats in that building just because they are empty. It makes no difference whether those flats have been empty for 10 days or 10 years. It is to be noted that Mr Kornhauser, very properly, does not say that he has acquired any form of rights by way of adverse possession.
5. He is seeking to challenge the decision of the Land Registry that was recorded in a letter dated 15 March 2011 not to register his interest in the property, by which is meant the house at 96 Harwood Road. The relevant parts of the Land Registry's letter dated 15 March 2011 read as follows:

"It appears that you are trying to protect your assured tenancy agreement with Notting Hill Housing Trust on the register, and further, your claim to an extricable or possessory interest in the property owned by Notting Hill Housing Trust.

I have reviewed your correspondence with Land Registry, and notwithstanding the matters raised in your letter of 7 March, I confirm the views expressed in Nia Salter's letter of 23 February. It is not possible to note or to register your tenancy agreement. Further, there is nothing to suggest that the properties are held on trust for you by Notting Hill Housing Trust or that you have any interest in the property in addition to the tenancy. I note that your tenancy agreement commenced prior to 13 October 2003, the date on which the Land Registration Act 2002 came into force. However, that does not change how we can deal with what you are seeking to do.

Prior to 13 October 2003 your tenancy would have been an overriding interest under section 70 Land Registration Act 1925. it continues now as an overriding interest by virtue of paragraph 12 of Schedule 12 to the Land Registration Act 2002, and generally under paragraph 1 to Schedule 3. Registration of a notice of an interest in land can take place under the Land Registration Act 2002 save where it is an excluded interest under section 33 of the Land Registration Act 2002. Your tenancy is such an excluded interest."

6. I should perhaps now refer to Mr Kornhauser's tenancy agreement. That is entitled "Assured Tenancy Agreement". It is made between the Notting Hill Housing Trust and Mr Kornhauser for a property described as 96B Harwood Road, Fulham, London SW6, and then it refers to the accommodation that I have already described, and it provides for a rent, but there is no reference to any service or other charge, and then on the reverse it says this:

"The service charge shown on page 1 is used to provide the following services. Under the Leasehold Reform, Housing and Urban Development Act 1993 the assured tenant, Mr Sebastian Kornhauser, is entitled to register leasehold interest in the building known as 96 Harwood Road. This includes an assured right to register interest on the land."

7. Mr Kornhauser has not pointed me to any provision in the Leasehold Reform, Housing and Urban Development Act 1993 which would provide any entitlement to registration, and the only one that my own researches have found is section 42 of that Act, which concerns an application for a new lease which, in certain circumstances provided for by that Act can be made, and it is an application or a claim that can be registered.
8. This application was refused by the single judge, Ms Ingrid Simler QC, sitting as a Deputy High Court Judge, and she said this:

"The claimant has an assured tenancy agreement in relation to the premises granted by the registered proprietor, Notting Hill Housing Trust, with effect from 27 November 1995. This gives security of tenure to the claimant as an assured tenant so long as he occupies the premises as his only or principal home. The trust can only end the tenancy by obtaining a court order for possession of the premises on one of the grounds listed in Schedule 2 of the Housing Act 1988.

For the reasons explained by the defendant in letters dated 10 February 2011, 23 February 2011 and 15 March 2011, the claimant's tenancy is an interest in respect of which no notice may be entered on the register pursuant to section 33B of the Land Registration Act 2002. There is no evidence to support any argument to the contrary.

It is not arguable that the defendant's refusal to register the claimant's interest was, in the circumstances, wrong in law. The defendant had no discretion in relation to the question of whether or not to register. It is not arguable that this decision unjustifiably interferes with any of the claimant's asserted Convention or other rights. Nor is it arguable that section 33 of the 2002 Act is incompatible with the claimant's Article 8 rights. The claimant's real protection is afforded by the Housing Act 1988 and no further protection is required."

9. She also refused permission on a separate ground that the application was not made within three months as required, but that appears to have been wrong, and Mr Kornhauser has satisfied me that it was made within time.
10. It might be thought that Mr Kornhauser is seeking simply to register the protected interest referred to by the judge in those reasons, but he is not. In fact, his application goes much further, and I can put it no better than adopting his own words in paragraph 49 of his argument in support of this application. There he said this:

"Therefore, the claimant submits that the Notting Hill Housing Trust is not entitled to claim absolute freehold title over the property situated at 96 Harwood Road under title number LN229821. The Land Registry should instead register the claimant with absolute freehold title by virtue of the claimant's actual occupation and exclusive possession."

11. I asked Mr Kornhauser today if that was what it was that he wanted the Land Registry to do and he confirmed that that was indeed the case. It appears from Mr Kornhauser's submissions today, which have been presented courteously and, if I may say so, with great learning, that he is indeed seeking to have himself registered as the freehold owner of the house.
12. I have to say the suggestion that an assured tenant occupying one flat in a building that contains at least one other unoccupied flat can, by virtue only of his tenancy of one of the flats and continued occupation of it, obtain the freehold title of the building is one that needs only to be stated in order to be rejected.
13. In spite of the ingenuity of Mr Kornhauser's many arguments, he is simply attempting the legal equivalent of trying to turn lead into gold. It cannot be done.
14. There is not, nor could there be, any authority for the proposition that under English common law a tenancy of part of a building can confer on that tenant a right, without more, to acquire the freehold of the whole of the building. I must make it quite clear that in this application Mr Kornhauser is not relying on any statutory provision; he seems to be founding his claim on some form of proprietary estoppel or doctrine of unconscionability. He is saying, in effect, that because his tenancy, whilst assured and whilst it can continue, is in effect a repeating cycle of a fixed period - whether it be a week or a year, it probably does not matter - makes it unconscionable, because although he might in fact be there for the rest of his life, he can acquire no interest equivalent to that of someone who had exclusive ownership of the freehold of the property.
15. In my judgment, his submissions confuse exclusivity of possession, which, in relation to his own flat, he has, with what he terms "exclusivity of ownership of the whole of the registered title" (I take that from paragraph 25 of his argument). Mr Kornhauser calls this doctrine the interversion of possession. It is an interesting concept, but Mr Kornhauser did not produce any authority at the hearing that satisfied me that any such doctrine exists. Indeed, I think any land lawyer in this country would be astonished to hear of it.
16. However, following the conclusion of the hearing and my delivery of this judgment, Mr Kornhauser provided me with a copy of an article in the "American Law Register" of December 1861 entitled "On the Interversion of Possessions; or, whether a party can change the cause of his possession". I did not find anything in this very learned article to change my views. The article was concerned with a change of the basis of a person's possession of a particular property, not with the acquisition of other property of which that person was not in possession. I am sorry to have to say that it seems to me this application is misconceived.
17. Mr Kornhauser's further point is that this tenancy is really a sham. He says it is a contradiction in terms to have an interest in the whole of a house when it is in truth divided into three flats. However, I see no contradiction. It is simply a hierarchy of title. The tenants' right to occupy each flat derives from the landlord's freehold ownership of the whole building. That is the nature of the arrangement. However long the tenant may stay there under an assured tenancy, and to whatever extent other flats may be vacant, cannot convert the occupying tenant's rights under his tenancy agreement into a freehold ownership of the entire building.
18. It seems to me that the Land Registry cannot possibly be entitled to register Mr Kornhauser as the freehold owner of 96 Harwood Road under the title LN229821.
19. Accordingly, for these reasons, I must refuse permission in this case. Mr Kornhauser, I am sorry, but there it is.
20. CLAIMANT: Can I request a transcript, if I may?
21. MR JUSTICE EDWARDS-STUART: Yes, you may, and that will be noted by the office. I will grant the right to a transcript, Mr Kornhauser.