REF/2009/1095

 

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

RAJ PROPERTIES LIMITED

 

APPLICANT

 

and

 

JAMES WALTER JOHN WALLACE-JARVIS

 

RESPONDENT

 

Property Address: Flat 1 Odessa Court, Odessa Road, London E7 9BE

Title Number: EGL41071

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

 

Sitting at: Victory House

On: 25 and 26 March 2010

 

Applicant Representation: Solicitor

Respondent Representation: In person

___________________________________________________________________________­

 

 

Claim under schedule 6 of the Land Registration Act 2002 for adverse possession of a flat by a squatter after the landlord had retaken possession of the flat but without having the leasehold title closed. Claim made to the Land Registry only in respect of the leasehold title. Claim upheld in respect of the leasehold title (subject to such right as the landlord may have to apply to have that title closed). Claim would not have succeeded if the Respondent had required the application to be dealt with under paragraph 5 of Schedule 6. Applicant refused permission to include a claim to the freehold title to the flat as no application in respect of the freehold title had been made to the Land Registry.

 

 

1. For the reasons given below, I shall direct the Chief Land Registrar to give effect to the application of the Applicant dated 14 November 2008. In view of the fact that the application relates only to the leasehold title, which the Respondent freeholder may well have determined in equity by re-entry, it is unclear whether this will be of any value to the Applicant. Insofar as the Applicant’s Statement of Case seeks to establish that it is entitled to the freehold title by adverse possession, that is not a matter which has been referred to the Adjudicator, and, for the reasons given below, I am not in a position to deal with it.

 

2. The Respondent, Mr. Jarvis, is the registered proprietor with title absolute of a block of 6 flats, Odessa Court, in Forest Gate. The Applicant, Raj, is a property company which has a long lease of flat 2 in that block. I held a site view on the morning of the first day of the hearing which was attended by the solicitor for Raj, who was also the son of the principal director of that company. The site view was overlooked by Mr. Jarvis, who therefore did not attend.

 

3. Flat 2 is a first floor flat which shares a common entrance from the street with a ground floor flat, flat 1. The other flats in the block, flats 3 to 6, has a separate entrance from the street and no connection with the other two flats except that they share a party wall and a roof, and, at ground floor level, access can presently be obtained over a dilapidated fence to the back garden of flat 1. Access to that garden is also obtainable from the back door of flat 1, and via an outside staircase from the rear of flat 2. At present the outside staircase is in a derelict condition and dangerous to use.

 

4. Flat 1 is a two room flat with kitchen and bathroom. It was let by a lease dated 12 June 1975 for a term of 99 years from 25 March 1975. It is registered under title EGL41071, the registered proprietors being Yvonne Mary Taylor and Gay Hargreaves. They were registered as proprietors on 4 January 1993. On the same date a charge dated 12 September 1989 was registered in the name of Nationwide Building Society, as appears from an old copy of the entries in the register. A later official copy of the register dated 14 February 2006, however, shows the same registered proprietors, but no charge. There is no evidence as to the circumstances in which the charge was removed from the register, although there was evidence that the registered proprietors had left the flat and that Mr. Jarvis had been sent the keys by Nationwide.

 

5. It is clear from a letter from Raj to a firm of solicitors, Shoosmith & Harrison, that this had already occurred by late January 1994. There is no explanation as to why both the leaseholders and the chargee should have given up the flat in this way. It may have been in poor condition, but it plainly had some value.

 

6. Mr. Jarvis had been the registered proprietor of the block since 1986, subject to long leases of each of the flats. In 1993 or 1994, after the leaseholders had gone and he had received the keys, he moved a settee into flat 1, but he did nothing else to it. In particular, he took no steps to repair it or to re-let it. Both he and Raj agree that it required considerable refurbishment before it could be relet and, whether for financial or other reasons, he was not willing at that time to refurbish it. Nor did he do anything to close the leasehold title at the Land Registry or to have the notice of that lease removed from his own registered title. There was also a gas cooker in the kitchen which Mr. Jarvis said at one point was his, but on questioning, it became clear that it had been left behind by the leaseholders and was his only in that he had taken possession of it with the flat.

 

7. Raj had acquired a long lease of flat 2, which was registered in September 1993. They let it to tenants. They were interested in acquiring a long lease of flats 1 and 3 when they heard they had become vacant, and it was with this in mind that they had contacted Shoosmith & Harrison, whom they understood to be the landlord’s solicitors. Subsequently, by letter dated 10 February 1994 they also wrote to Mr. Jarvis to the same effect, but received no reply. They again enquired about buying flat 1 to no avail by letter of 7 December 1995, when they wrote to Mr. Jarvis in connection with a report of a water leak from flat 2 and other matters. Mr. Jarvis replied by letter of 9 December 1995 dealing with other issues but made no reference to the enquiry about buying flat 1.

 

8. By 1997, Mr. Jarvis was ceasing to pay proper attention to his duties in connection with the maintenance of the common parts of the block. This led to Raj writing to him about necessary repairs to the roof by letter of 13 November 1997, which seems to have been ignored. A further letter from Raj dated 2 December 1997 refers to a telephone call by Raj to Mr. Jarvis that afternoon. The letter states that when Raj told Mr. Jarvis that they required him to meet his obligations to them as lessor by causing the repair of the roof and in default they would be applying to the court for a mandatory injunction or for him to be replaced as the manager of the building, his reply was said to have been “Get on with it then”.

 

9. It would appear that Mr. Jarvis continued to do nothing, and that in the end Raj carried out their own repairs to the roof. Mr. Jarvis continued to do nothing for many years. He appears to have had serious health problems, at least from about 2000. He was a practising solicitor, but following various complaints of misconduct, largely relating to neglect of his clients’ affairs, he was winding down his practice and had ceased practising at latest July by 2003. The complaints against him were sufficiently serious for the Solicitors Disciplinary Tribunal first to impose financial penalties on him and then to order that he be suspended from practice for 5 years.

 

10. Although it may be that Mr. Jarvis continued to maintain the insurance policy in respect of the block, he did nothing to claim either ground rent or service charge payments under the terms of the various leases, and did not inform the leaseholders that the policy remained in force. I heard evidence from Mr. Mark Kotarski, the father of the leaseholder of flat 6, who had lived at that flat from 1996 to 2001. He stated that Mr. Jarvis had ceased to be available or to look after the block from about the beginning of 1998, and he did so in respect of his part of the block with the help of Raj, doing jobs like cleaning drains and clearing rubbish. He also had to change the locks for the front communal door to flats 3-6 several times over that period because Mr. Jarvis would not do it. This was necessary because of problems caused by tenants of the ground floor flats, where there was a high turnover. When he changed the locks, he would post a key to Mr. Jarvis, or make it available to new tenants. Mr. Jarvis’ wife would visit flats 3 and 4 for a time, and appeared to be managing the letting of those flats until managing agents were appointed, but neither of them had any interest in the communal parts. Mr. Jarvis contended that Mr. Kotarski was probably making up his evidence because of his close relationship with Mr. Arora. There was, however, no evidence of any connection between the two beyond the fact that they co-operated in dealing with the problems created by an absent and negligent landlord. Even such co-operation was limited to the period up to 2001 when Mr. Kotarski left.

 

11. Raj’s case is that from 1998 they went into possession of flat 1, changed the locks to the front door, as well as to the street door, and used the flat to store furniture intended for other flats owned by them. Most of that evidence is contained in statutory declarations and a witness statement sworn by a director of Raj, Satinder Kumar Arora. Unfortunately, Mr. Arora, who is now 72, has had heart problems and did not attend to give evidence in person. Although no medical statement was produced that he could not attend to give evidence, I was provided with a medical report dated 6 October 2009 showing that he had had coronary angioplasty or stent insertion that day, and was due a 6 months follow up on 7 April 2010, with a further appointment booked for June. I am not satisfied that this evidence of relatively minor surgery last October is such as to mean that he was unable to attend to give evidence, and I treat his written evidence with some caution where it is challenged.

 

12. Mr. Arora’s evidence is that in the absence of Mr. Jarvis, Raj carried out during early 1998 urgent repairs to part of the building. The need for repairs is borne out by the correspondence to which I have referred, and it is plain that Mr. Jarvis did not carry them out. It seems to me that Raj must have decided that the sensible thing was to get the repairs done itself rather than going to court, particularly as part of the costs would have been borne by it as a service charge item in any event.

 

13. Mr. Arora also states that flat 1 was not secure and it was necessary to gain access and to inspect it. Again, it makes sense that access should be needed to the rear of the property in connection with any repairs to the rear, or to the roof at the back, and that could most easily be obtained through flat 1. None of this was seriously challenged by Mr. Jarvis, although he did at one point suggest that the correspondence had been concocted for this case. I have no hesitation in rejecting this allegation which is without any basis. For reasons given below, I also find that Mr. Jarvis is himself not a credible or reliable witness.

 

14. According to Mr. Arora, it was at this time that Raj took the opportunity to store furniture items in flat 1 and secure that flat by changing the locks to the front door of the flat and to the communal entrance. There is some support for this evidence from Mr. Kotarski. He had never been inside flat 1 but had, while living in flat 6, looked through both the front and back windows of flat 1 and seen furniture stored there to such an extent that it was not possible for anybody to have been living there at the same time.

 

15. Mr. Arora also stated, and this appears to have been accepted by Mr. Jarvis, that during late 2004 it came to Raj’s attention that its assured shorthold tenant may have abandoned flat 2, and on inspection it was found that it had been left unsecured and that squatters had moved into flat 2 and had gained access to flat 1. The squatters had not squatted in flat 1 because it was in such poor condition. Raj had obtained a possession order in respect of flat 2 in December 2004, and on enforcing it, Raj again secured both flats and changed the street door and locks. By letter of 2 December 2004, Mr. Arora’s son, Raj’s solicitor, wrote to Mr. Jarvis that Raj had been unable to make telephone contact, and complained about breaches of Mr. Jarvis’ obligations as landlord under the lease of flat 2, and referred to the squatting that had occurred and to some of the steps taken by Raj in respect of flats 1 and 2. Once again, it is not suggested that Mr. Jarvis in any way responded to this letter.

 

16. Mr. Jarvis stated in evidence that in 1997/8 he was still visiting flat 1 from time to time to ensure that there were no gas or electricity problems and that it was OK. He had the keys to the street door, the front door and the back door. He did not know why the leaseholders had left. Much of his legal and property work had been dealt with by somebody called Bernard, and Bernard may have dealt with the departing leaseholders in 1994. He had bought the long leases of flats 3 and 4, the two ground floor flats in the other part of the block and put them in the hands of letting agents. He would, he said, have bought flat 1 at the right price. He stated that he did not resell or relet flat 1 because it needed a huge refurbishment. He did not do this, he stated, because he was winding up his solicitor’s business, Bernard became ill and left him in a big mess. There were files all over the place and he was behind in his work. The property business was evolving at that time and he had several blocks of flats.

 

17. Mr. Jarvis’ submissions to a disciplinary tribunal at p.99 of the trial bundle suggest that ‘Bernard’ is a Mr. B who appears to have retired in or after June 1995. It is plain from paragraph 32 on p.100 that Mr. Jarvis did not retire at that time (when he was nearly 60 years old and things were getting on top of him). The practice was not profitable but, he submitted that he did not know how to close it down. The beginning of the end, he had submitted, was when his wife had a serious road accident in March 2001. He himself had collapsed and been taken to hospital. It was only when he was 67, in 2002 or 2003, that he had taken and accepted advice that he should dispose of his practice, which he had done by the time of the hearing on 29 April 2003. The finding of the tribunal, at p.107, was that he had retired on 14 April 2003.

 

18. By the time of the hearing before me, despite these matters being in the trial bundle, Mr. Jarvis was, or purported to be, confused as to when he retired. He stated that his solicitor’s business had been wound up in 2000-2002. Then he said it was much earlier. Then, when the date of 14 April 2003 was drawn to his attention, he stated that he had been unwinding the business for some time. He stated that he had lost Bernard, then his typist had left, then somebody else had been helping, and just before 2003, he said, other people had come to get the typing in order. He was working very hard during that time. The filing was in a mess and some personal records had gone. When asked the date of his wife’s car accident, he put it at about 2000.

 

19. He had time to visit the flat and do it up, but did not do it up. The funds were always there for external work, and when he went there, he looked to see if anything needed doing. He wondered about the authenticity of the letter from Raj dated 2 December 1997 quoting him as telling them to get on with going to court, and also the earlier letter of 13 November 1997. He claimed that if he had received that sort of letter and a sensible quote, he would have made arrangements to p[ay contractors direct or re-imburse Raj. He accepted his administration was bad and that no service charge statements may have been sent out for many years. At another point, Mr. Jarvis said that he did not think he said “just get on with it”, and that it was a pretty rotten letter, unco-operative and unhelpful. He did not think he needed to reply. Raj Properties were, he said, a rotten lot to deal with.

 

20. He claimed that he had visited flat 1 quarterly with a dust pan and brush and damp cloth which he kept in the boot of his car. He also claimed that “they” would have seen him clearing up, for example, the mess in the bathroom, where there was dust from a hole in the ceiling. There was also a hole in the kitchen ceiling. He had access through the street door of flats 3-6 and then over the dilapidated fence to the back garden of flat 1. He disputed Mr. Kotarski’s evidence that the back door had been stuck and would fall apart if he tried to open it. Mr. Jarvis had had no real problem opening it, beyond it sticking a bit. Initially he said that he had been getting access to flat 1 through the street door and front door. He had then found that the street door would not respond to the key Mr. Arora had given him in 1997, after the street door lock had been changed. Mr. Jarvis denied seeing anything in flat 1 before the squatters arrived in flat 2, and appears to have seen very little since. He referred to a mattress appearing on the back room floor after the squatters had left, as well as a photocopier and cooker in the front room after that time. He confirmed that his wife would clean and keep an eye on flats 3 and 4, and said that she would also keep an eye on flat 1. However, there was no evidence either from her or from the alleged managing agents.

 

21. Mr. Jarvis claimed that the locks had only been changed so as to exclude him after the squatters had been evicted. He denied that they had been changed before, at least after the front door lock had been changed in 1997 and he had been sent the new key. He had full access until 2004.

 

Findings of fact

22. I find Mr. Kotarski to be an honest and straightforward witness, who did not seek to embellish his evidence. Having watched him give evidence, I reject the allegation that that evidence was fabricated.

 

23. By contrast, I find Mr. Jarvis to be a wholly unsatisfactory witness. He was plainly incapable of managing his and his clients’ affairs during the period in question. He failed to carry out his obligations as a landlord leaving it to the leaseholders to do his job for him, and failed to communicate with them. I find the idea that during this period he was regularly coming to flat 1, unseen by anybody, with a dustpan and brush, wholly unbelievable. He may have paid the occasional visit at least later in the period under review, from about the time in 2008 that he was refused a key by Mr. Arora’s son, and it is possible that he was able to open the back door, having clambered over the half-fallen fence. Mr. Kotarski may have simply been unwilling to risk trying to open it out of caution, bearing in mind that it was not his flat and he did not want to cause damage. If Mr. Jarvis did so visit the flat, he left no trace of his presence behind him, and his fleeting visit or visits did not in any way mean that Raj was not still in exclusive possession.

 

24. Mr. Jarvis’ recollection of dates is also, at this stage, very unreliable, as the contrast between his submissions to the disciplinary tribunal and his evidence in this reference shows. He was also very prone to look for excuses for his inaction, although perhaps the best explanation came with his frank admission that, compared with how it had been, his mind had gone. While I was satisfied that he had capacity to present his own case, he may have been better advised to have obtained outside help.

 

25. I am satisfied in the light of Mr. Kotarski’s evidence that Raj was using the flat to store large quantities of furniture before he left in 2001. That contradicts Mr. Jarvis’ evidence that the flat was not so used at any time, but that only very few items turned up there after the squatters. I am further satisfied that with so much furniture stored there, it would have been essential for the flat to be secure, especially as representatives of Raj would not be on the premises regularly, as flat 2 was let by it. Having rejected Mr. Jarvis’ evidence, and in the light of Mr. Kotarski’s evidence, I accept Mr. Arora’s otherwise untested evidence that the flat was secured by him as he described from February 1998, and that it was used by Raj as he describes.

 

26. I am therefore satisfied that apart from a brief period in 2004 when other squatters were in occupation, Raj has been in possession of flat 1 continuously since about February 1998.

 

The law

27. Paragraph 1(1) of Schedule 6 to the Land Registration Act 2002 provides that “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.” So far as the squatters are concerned, there is no evidence that they took possession of flat 1. Although they did gain entry, they had no use for it, and confined themselves to flat 2. Accordingly, on the evidence before me, Raj was in possession of the flat for 10 years. That possession would have been apparent to Mr. Jarvis had he taken the trouble to look, and Raj intended to retain possession so long as they could for their own benefit.

 

28. Even if the squatters did take possession, by virtue of paragraph 11(2) of that Schedule, “A person is also to be regarded for those purposes as having been in adverse possession of an estate in land— … (b) during any period of adverse possession by another person which comes between, and is continuous with, periods of adverse possession of his own.” Accordingly, Raj was entitled to make the application to the Land Registry.

 

29. In making that application, Raj stated that it intended to rely on paragraphs 5(2) and 5(3) of Schedule 6. The standard form ADV1, on which the application was made, includes section 12, which asks the applicant to confirm which, if any, of the conditions set out in Schedule 6, paragraphs 5(2) to 5(4) the applicant intended to rely on. Paragraph 5 provides that if an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met. Two of those conditions are contained in paragraphs 5(2) and 5(3).

 

30. The registrar then gave notice of the application to Mr. Jarvis pursuant to paragraph 2 of Schedule 6. Paragraph 3(1) of Schedule 6 provides as follows:

 

(1)    A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5.

(2)    The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide.

 

31. Paragraph 4 of Schedule 6 then goes on to provide that if an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate. That must, of course, be subject to his establishing that he has been in adverse possession of the estate for the period of ten years.

 

32. Rule 189 of the Land Registration Rules 2003 provides that the period for the purposes of paragraph 3(2) of Schedule 6 is the period ending at 12 noon on the sixty-fifth business day after the date of issue of the notice. Rule 190(1) provides:

 

1. “A notice to the registrar under paragraph 3(2) of Schedule 6 to the Act from a person given a registrar’s notice must be –

                                                              i.      in form NAP, and

                                                            ii.      given to the registrar in the manner and at the address stated in the registrar’s notice.”

 

33. Section 5 of form NAP states “Place “X” in the appropriate box or boxes. There are three boxes. The first consents to the application. The second states, “I require the registrar to deal with the application under schedule 6, paragraph 5, to the Land Registration Act 2002. The third states “I object to the registration on the grounds stated in panel 6”. Mr. Jarvis does not appear to have returned form NAP at all, but only submitted a statutory declaration setting out his objections, which did not, in any event, require the matter to be dealt with under paragraph 5 of Schedule 6.

 

34. In those circumstances, Mr. Jarvis has lost the opportunity of requiring that this application should be dealt with under paragraph 5 of Schedule 6. This is fortunate for Raj, as I am satisfied that its attempts to rely on paragraphs 5(2) and 5(3) are doomed to failure. There is no possibility of its establishing a right by estoppel to any interest in the property and no other reason why it should be registered as proprietor. It knew throughout that the property was not its own. I obtained benefit from the use of the property and there was never any representation by Mr. Jarvis or anybody else that may have given rise to any estoppel. Nor has any other basis been suggested which may have entitled Raj to be registered as proprietor of this estate.

 

35. However, in the absence of any requirement that the matter should be dealt with under paragraph 5, Raj is entitled to be registered in place of the current registered proprietors as proprietor of the leasehold interest EGL41071. It is unnecessary for me to express any view as to what benefits may accrue from this, bearing in mind the re-entry previously effected by Mr. Jarvis following the surrender of the keys.

 

36. In its statement of case, Raj also sought that it should be registered with the freehold title to flat 1. That is not a claim that has been referred to me. To make such a claim at the Land Registry, Raj would have had to make the application not in respect of the leasehold title, but the freehold one. It would have had to set out in form ADV1 whether it relied on paragraph 5 of Schedule 6 and Mr. Jarvis would have had the opportunity of requiring in form NAP that that claim be dealt with under paragraph 5. If Raj still wishes to apply to be so registered, it may make a fresh application, but quite apart from other problems, if Mr. Jarvis on this occasion were to return form NAP properly completed, requiring the application to be dealt with under paragraph 5 of Schedule 6, the Land Registry would in my judgment be bound to reject the application.

 

37. As it is, Raj is entitled to be registered as proprietors of what may be no more than the shell of a lease, and it will be for Mr. Jarvis to decide what if any steps he wishes to take to close the title, bearing in mind that, but for its being a registered title, this lease would have ended in 1994 on re-entry by the landlord. It will also be for Raj to decide whether it wishes to take any steps, for example by applying for relief against forfeiture, to strengthen its title. Alternatively, and bearing in mind the other issues between the parties arising from Mr. Jarvis’ total neglect of the whole block for many years, the parties may wish to reconsider whether this dispute is now capable of settlement by agreement.

 

 

Dated this 8th day of April 2010

 

 

 

By Order of The Adjudicator to HM Land Registry