REF/2007/0865

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of tHE references from hm land registry

 

 

BETWEEN

JONATHAN HOWARD ROBERTS

JANET ANN THAIN

Applicant

and

 

TRUSTEES OF BRIERFIELD MOSQUE

Respondent

 

Property Address: Site of 20A Sackville Street Brierfield BB9 5LR

 

Title Number: LA775922

 

Heard at: Manchester Civil Justice Centre

 

By: Mr Owen Rhys Deputy Adjudicator

 

On: Thursday 8^th October 2008

 

Applicant representation: Mr Jonathan Howard Roberts in person

Respondent representation: Mr Simon Vaughan of Counsel instructed by Darwen Law Chambers

 

 

D E C I S I O N

 

Vol. 27(1) Halsbury’s Laws at para. 609

Woodfall paras 1-1760 and 17-089

 

1. By a lease dated 30^th September 1875 (“the Lease”) Henry Holden (1) demised a parcel of land some 558 square yards in area (“the Demised Premises”) to Elizabeth Shaw (2) for a term of 999 years at a rent of £5 16/3d per annum, now equivalent to £5.61p. The Demised Premises were identified on a plan attached to the Lease and consist of a block of land at the corner of Oxford Street, Brierfield to the north, Sackville Street to the west and Ross Street to the east. The Demised Premises consisted of building land, and in due course six dwellings were erected thereon, being a terrace of houses numbered 10-20 Oxford Street (even numbers). There is no complete record of the devolution of the leasehold title to the Demised Premises. However, an Abstract has been produced relating to Mrs Elizabeth Smithson, who acquired the leasehold term in August 1905. From this document, it is apparent that the Demised Premises as a whole continued to be comprised within the Lease, and certainly by 1905 there had been no separate disposals of any part of the Demised Premises, regularly described within the Abstract as “the piece of land and 6 dwellinghouses”.

 

2. It is common ground that No 20 Oxford Street – being the western end of the terrace of houses known as Nos.10-20 Oxford Street – was demolished at some time in the 1970s. It was probably demolished by the local council on the grounds that it was unsafe. It seems to have become known as 20A Sackville Street and I shall refer to it as “No 20A”. This was the house that lay on the corner of Oxford Street and Sackville Street. In or about 1996 the Applicants purchased the freehold reversion to the Lease, and obtained separate registered titles for each component part of the Demised Premises. The freehold title to No 20A was first registered on 26^th March 1996, and the Applicants first became registered as proprietors on 17^th February 1997. No 20A has a title number LA775922. The Lease is noted in the Charges Register to this title. This dispute arises out of the Applicants’ application received on 13^th April 2007 to cancel the notice on the Charges Register of LA775922 protecting the Lease. Although the Respondents are not registered as proprietors of the Lease, they have objected to the application, their objection has been accepted by the Land Registry, and the dispute was referred to the Adjudicator on 2^nd July 2007.

 

3. The basis of the Applicants’ application is that they claim to have forfeited the Lease, in relation to No 20A. Before I explain how they put their case, I should first explain the position of the Respondents. They are four of the Trustees of the Brierfield Mosque (“the Trustees”). There are in fact additional trustees, but a maximum of four individuals may be registered as proprietors at the Land Registry and the Respondents are registered with title to Nos 10-18 Oxford Street (even numbers only). Each of these properties has a separate leasehold title. By way of example, No 18 Oxford Street is registered under title number LA901957. Entry 3 in the Property Register refers to the Lease. Entry No 4 refers to a “Surrender” dated 22^nd March 1920, whereby “the rent reserved by the lease was informally apportioned as to 18s.7d. to the land in this title”. There is no copy of the Surrender with the title. It is not clear how or why the Land Registry decided to register all these component parts of the Demised Premises with separate titles. The Applicants, who are familiar with Land Registry practise in relation to such reversions in the area, tell me that this is commonly done. However, I am at a loss to know how this is said to work as a matter of law. There is a reference to a “Surrender” on the titles, but this only seems to relate to the informal apportionment of the rent. No assignments are noted, other than in relation to 10 Oxford Street (LA784855), and again this refers to the informal apportionment of rent. However, the precise legal basis for these registrations is not directly in point, although the point does become more relevant when considering the issue of forfeiture of part, discussed in paragraphs 13 and 14 below. It is apparent that the Applicants have been registered with a freehold title to No 20A, and they seek to remove the entry relating to the Lease. It is that application which I must decide. At the hearing, the Applicants were represented by Mr Jonathan Roberts, to whom, for reasons which will become apparent, I shall refer as “Mr Roberts senior”. The Respondents were represented by Mr Simon Vaughan of Counsel.

 

4. By way of background, the Trustees acquired all the properties known as Nos.10-18 Oxford Street for the purpose of building a new Mosque on the site. The steel structure of the Mosque is now complete, although the building is unfinished. Part of the structure rests on No 20A, albeit that this is not within the Trustees’ title. I have seen correspondence between the Trustees and the Applicants which preceded this application, in which there are negotiations for the sale of the freehold reversions to Nos 10-18, and No 20A, to the Trustees. No agreement was ever reached, and the Trustees criticise the Applicants on a number of grounds. Indeed, they allege that the Applicants are bound, by an estoppel, to dispose of all the reversions to them at a reasonable price. However, both parties are agreed that this estoppel issue cannot be resolved in these proceedings, and it may be that there will have to be court proceedings for that purpose. The motivation for the Applicants’ application in this case is not of course relevant.

 

5. Although there are one or two additional points, to which I shall refer below, the principal issue for me to decide is whether or not the Lease has been forfeited as regards No 20A. This question gives rise to two sub-issues: first, as a matter of fact and law, has there been a sufficient re-entry by the Lessor to amount to a forfeiture and, secondly, if there has, is it possible for this re-entry to determine the Lease as to one part of the Demised Premises only. For the sake of completeness I shall set out the material terms of the right of re-entry relied upon:

“…if the yearly rent reserved or any part thereof shall remain unpaid …it shall be lawful for the said Henry Holden his heirs or assigns into and upon the said premises hereby expressed to be demised or any part thereof in the name of the whole to reenter and the same to have again repossess and enjoy…”

There is no dispute that the rent is outstanding and has been demanded, although since the tenant is unknown the demand will doubtless not actually have come to the tenant’s attention. No point is taken with regard to this issue.

 

6. There is some dispute about the facts of the alleged re-entry. Mr Roberts senior did not himself effect re-entry – this was done by his agents, in the person of his son, who was then (as now) a trainee solicitor. Mr Roberts senior referred to it in his Statutory Declaration in these terms:

“The rent not being paid, under the aforementioned right of re-entry, our agents, Morgoed Estates Limited also of Clungunford House, Clungunford Craven Arms Shropshire SY7 0QL repossessed the property at approximately 9.30 am 01 April 2007. Legal action is being prepared to eject the trustees from the property and remove any structures placed there by the trustees.”

Mr Roberts senior exhibited a copy of a “Notice of Forfeiture” and Land Registry plan which, according to the Statutory Declaration was “affixed to fencing at the property”. Indeed, there is a photograph exhibited to the Statutory Declaration which shows the notice and plan, and some fencing. On the other hand, Mr Ishtaq Ali, one of the Trustees, gave oral evidence on behalf of the Respondents, and he firmly recollected that the entirety of the site, including No 20A, was surrounded by a secure steel mesh fence. The entire site was of course being developed into a Mosque, and machinery and building materials were present. The fence he recalled is the exact type of fence that can be seen in the photograph exhibited to Mr Roberts senior’s statutory declaration. According to him, the fence had a single entrance from Sackville Street – consisting of a movable section of fencing – but this was padlocked and chained shut when building work was not being carried on, outside working hours and at weekends. He could not recall actually attending the site on 1^st April 2007, the day of the alleged re-entry, which was a Sunday. According to him, therefore, the site was totally secure and could not be entered out of working hours. Although Mr Roberts senior himself had not effected the re-entry, he told me that he believed that his son was able to physically enter onto the land in some way, but was inevitably rather vague on this point.

 

7. In view of the way in which this issue had developed late in the day, I gave the Applicant permission to adduce further evidence from his son as to the precise circumstances of the alleged re-entry. In response, the Applicant has indeed submitted further evidence on this point from his son Mr David Alaric Jonathan Roberts (“Mr Roberts junior”), in the form of a witness statement. Mr Roberts junior is a trainee solicitor, working for a practice in the Middle East, and for obvious reasons this evidence cannot now be tested by cross-examination. The material evidence which he has given as to the re-entry is as follows:

“6. There was no-one present on the property when I entered it [this was of course a Sunday], which I did briefly by walking through an opening in the security fence around the site at a point in Sackville Street mid-way between Oxford Street and Calton Street on the western side of the site. The security fence at that point was breached, though whether it was blown open by the wind or pushed over by vandals, I do not know. ……..

7. Having entered the property I then concluded that the most visible place to attach a notice confirming the re-entry was on the outside part of the security fence still standing between my point of entry and Oxford Street. The security fence was standing on the Ross Street side of the Sackville Street premises and so was, as I understand it, well within the land demised by the lease dated 1 October 1875, the subject matter of these proceedings. I attached to the fence by cable ties the laminated notices exhibited …… to the statutory declaration of my father….”

 

8. At its highest, this suggests that Mr Roberts junior entered the site through a fortuitous gap in the fence, remained there “briefly”, and then affixed a “Notice of Forfeiture” on the outside of the security fence erected around the entire site. The exact position of the notice, if this is of importance, is not clear from this new evidence. Mr Roberts junior refers to the security fence as “standing on the Ross Street side of the Sackville Street premises and so was…well within the land demised by the lease dated 1^st October 1875…”. Ross Street runs directly parallel with Sackville Street, along the eastern side of the Demised Premises, whilst Sackville Street runs along its westerns side. The land in dispute, No 20A, has no frontage to Ross Street, being bounded by Oxford Street to the north and Sackville Street to the west. The “land demised by the lease dated 1^st October 1875” of course comprises the whole of the Demised Premises between Sackville Street and Ross Street. The photographs attached to Mr Roberts senior’s statutory declaration do not materially assist in determining the position of the notices. What is however clear from these photographs and from other photographs produced by the Respondents (attached to a valuation report), is that the whole site comprising the entirety of the Demised Premises was fenced with substantial steel fencing, which was largely erected on the pavements surrounding the site. There was a substantially completed building on the Demised Premises, part of which extended into No 20A, and there was a Portakabin and plant and machinery on the site. The whole site (including No 20A) was manifestly being actively occupied.

 

9. In the light of the evidence I have referred to, I have concluded that the “re-entry” by the Applicant consisted solely of affixing a Notice of Forfeiture and associated plan on the perimeter fencing of the entire site, at a point which probably did not actually adjoin No 20A and may physically have been on the pavement (part of the public highway) surrounding the site. It is difficult for me to make a finding as to the extent of actual entry onto the site, since Mr Roberts junior has not been cross-examined, and his evidence appears to be in conflict with that of Mr Ishtaq Ali. However, I think I must accept his evidence that, on Sunday April 1^st 2007, there was a gap in the otherwise secure perimeter fence, which he did not create, and that he “briefly”entered the land through this gap. Mr Ali did not himself visit the site on that day, and it is of course possible that the fence was temporarily damaged on that day, and subsequently repaired. However, the actual physical “entry” onto the land by the Applicants’ representative, in the sense of actually setting foot onto any part of the Demised Premises, was fleeting at best. No attempt was made to secure the Demised Premises, or any part of them, against the tenant or other occupiers. The “re-entry” did not physically impede or in any way affect the occupants’ occupation of the site, which continues to this day, nor did it recover possession of No 20A for the Applicants. There is no evidence that the notice pinned to the fence – at some indeterminate location – ever came to the attention of the tenant. From the evidence, it would be impossible for the tenant, or anyone else, to be aware that the Applicants had physically entered upon the Demised Premises, even to the limited extent that they claim. Mr Roberts senior explained to me that he did not wish to provoke any confrontation with the Trustees by (for instance) breaking the padlock on the gate and changing the locks. I entirely understand and respect the considerations to which he had regard. However, in the event the “re-entry” consisted solely of the actions I have mentioned.

 

10. In the light of these findings, can I be satisfied that there has been a sufficient re-entry onto the Demised Premises such as to effect a forfeiture of the Lease, at least as regards that part of the Demised Premises as consists of No 20A? Before dealing with this issue of law, I should point out that it was not expressly raised in the Respondents’ Statement of Case. This raised a number of issues, including reliance on the Human Rights Act 1998 and the Places of Worship Enfranchisement Act 1920, but did not challenge the actual process of re-entry. However, prior to the service of the Statement of Case, the Respondents’ Solicitor had raised the point directly, and somewhat pithily, in his letter to the Land Registry dated 17^th April 2007, as follows:

“Pinning a notice to the secure perimeter fence when there is no-one about does not constitute re-entry.”

Mr Roberts senior submitted that he did not have to prove, as against the Respondents, that there had been a valid forfeiture. Since the Respondents were trespassers – or at least persons who did not claim to occupy No 20A pursuant to a legal demise – they did not have any standing to challenge the forfeiture. Clearly, the Land Registry has considered that the Trustees are entitled to pursue an objection – hence this reference – and it seems to me that in any event I must be satisfied that there has been a forfeiture. The effect of the Applicants’ application would be to remove from the title to No 20A all reference to the Lease: in effect extinguishing the Lessee’s interest. I should not interfere with the Lessee’s property rights unless satisfied, on the balance of probabilities, that the Lease has been forfeited.

 

11. Perhaps because this issue did not seem important until the hearing developed, neither party was able to direct me to much in the way of judicial authority as to what is required to effect peaceable re-entry. However, since I gave permission for further evidence to be adduced, I also permitted the parties to make further written submissions on this issue, an opportunity of which they have both availed themselves. The Applicants essentially submitted that peaceable re-entry was effected by “re-entry with intention to forfeit”. In their view, the manifestation of the intention is the important factor, less so than the entry itself. In the present case, they do claim to have physically entered the premises, albeit briefly. That entry, coupled with the posting of a “notice of forfeiture” is, in their submission, sufficient to effect a forfeiture. Mr Vaughan, for the Respondents, referred me to the well-known case of Billson v Residential Apartments Ltd [1992] 1 AC 494. In that case the landlords had physically entered the premises, and changed the locks, although the tenant had regained entry after some four hours. This was held to be sufficient to constitute re-entry. The classic method of effecting re-entry is indeed to physically enter the premises and bar the tenant by changing the locks. It is stated in Vol. 27(1) Halsbury’s Laws at para. 609 that the landlord may effect re-entry “by physically entering upon the premises with the intention of determining the tenancy or by the issue and service of proceedings for the recovery of possession of the premises.” Alternatively, the landlord may allow another tenant into possession: the new tenant’s occupation of the demised premises to the exclusion of the original tenant is sufficient. Mr Vaughan also cited paragraph 17-089 of Woodfall, which begins with the following passage:

“At common law, a forfeiture may take place by way of physical re-entry. This is usually done by changing the locks. Where there are no locks (because the premises consist of open land) the forfeiture may be manifest in some different way (e.g. by stretching a chain across the land).”

 

12. On the basis of these citations, it seems to me that a landlord who elects not to determine the lease by the issue of proceedings must physically re-possess the demised premises, albeit for only a short time, before he can be said to have peaceably re-entered for the purposes of a forfeiture clause. Obviously, there are nuances within this requirement, and the question will often be one of degree. However, the essence of this method of forfeiture is to demonstrate to the lessee the lessor’s unequivocal and irrevocable intention to determine the lease. That intention is manifested by the physical re-entry on to the demised premises (either by the lessor or a new lessee), and by the exclusion of the lessee (usually achieved by changing the locks). Such actions leave no doubt as to the lessor’s intentions. The lessee is physically ejected or excluded from the premises by the lessee (by physical means as opposed to an action for possession) and the lease comes to an end. However, in my judgment, on the facts of the present case neither requirement was satisfied. First, there was no re-entry in any real sense of the word. The Applicants’ agent only fleetingly set foot in the premises, entering through a fortuitous gap in the perimeter fence. The “notice of forfeiture” was not posted within the demised premises but on the outside of the perimeter fence itself. There was no visible indication of the Applicants’ entry. On these facts I do not see how the Applicants could be said ever to have obtained possession of any part of the Demised Premises, nor to have retained possession for themselves. Secondly, no attempt was made to recover possession from or otherwise eject the tenant or unlawful occupiers. The tenant or, more likely, the Trustees as occupiers, retained exclusive possession of No 20A – to the exclusion of the Applicants – notwithstanding the alleged re-entry. Accordingly, there was no conduct or action on the part of the Applicants – other than the posting of the written notice, which in any event the Applicants have not proved was itself physically present on the Demised Premises or No 20A itself – which unequivocally demonstrated an intention to determine the Lease. The method adopted by the Applicants was neither physical re-entry in any real sense, nor the issue of proceedings, but was a sort of hybrid falling somewhere between the two. The Applicants may just as well have placed their “notice of forfeiture” as an advertisement in the local newspaper. However, this is not, under the law as it stands, a sufficient means of forfeiture. I do not think that the method adopted by the Applicants was effectual to determine the Lease and I cannot therefore agree with the Applicants that the Lease has been forfeited.

 

13. Strictly, since there has been no valid re-entry, I do not have to deal with the second issue: assuming that there had been a valid re-entry, whether this was effective to operate as a forfeiture of the Lease as regards No 20A alone. The Trustees argue that it is not possible for the Applicants to purport to forfeit the Lease as regards part only, as they do in this case. Here, they rely on the non-payment of rent in relation to No 20A as a ground for re-entering and terminating the Lease as regards No 20A only. The Trustees argue that this is not possible – the Lease can only be determined as a whole. In relation to this issue, the question arose as to whether there have been assignments of individual units of the Demised Premises, including No 20A. It is accepted on both sides that it is possible for parts of the Demised Premises to have been separately assigned. However, as the passage in Woodfall paragraph 1-1760 makes clear, assignment of part of demised premises, without the landlord’s consent, does not create, as against him, two or more separate holdings with separate tenants for each holding. The Respondents accept that part assignment is possible, as indeed they must since they have belatedly submitted in evidence just such an assignment, dated 15^th March 1954 and relating to No 10 Oxford Street. However, they contend that the Applicants in this case are unable to prove that any such assignment had the consent of the landlord under the Lease. The landlord is not a party to the Assignment made in 1954 nor does it appear from the recitals that consent was given to the original assignment. Indeed, the fact that the tenant of No 10 Oxford Street covenanted to pay the entire rent due under the Lease strongly suggests that the landlord was unaware of, or at least not party to, the various assignments that presumably occurred. The apportionment of rent between the tenants would not, on this basis, have affected the landlord under the Lease, who continued to look to the tenant of No 10 for payment of the whole. On the evidence before me, I can only conclude that the position is as stated in the paragraph of Woodfall cited above – namely, that as against the landlord, there is only one tenant under the Lease and one holding: the assignments have not in any way sub-divided the Lease.

 

14. A number of cases were cited to me, the most relevant and helpful of which is the decision of Nourse J (as he then was) in GMS Syndicate v Gary Elliott Ltd [1981] 1 All E R 619. In this case it was held that “….a landlord can in certain circumstances, such as those found in the present case, forfeit in part.” In that case the relevant circumstances were said to be as follows: (a) the demised premises (ground and basement floors) were physically separated one from the other and there was a sub-letting of the basement with the landlord’s consent, and (b) the breach of covenant (immoral user) related only to the sublet basement and to that part alone. The sublessor remained in occupation of the ground floor, and the landlord had no objection to it remaining there. In the circumstances, and Nourse J emphasised (see 626g) that the decision was limited to the specific facts of the case, it was held that the landlord could forfeit as regards the sublet basement only. It was a factor in the case that it would be very unlikely that relief from forfeiture of the whole would have been granted, since the relevant breach was immoral user (as to which, of course, the head tenant was blameless). The case does however establish that a landlord may, in appropriate circumstances, be allowed to forfeit as to part only. It seems to me that the case before me is not directly on all fours with the GMS decision. In particular, for the reasons explained above, there is no evidence that No 20A was the subject of a separate assignment or sub-letting to which the landlord consented or was party. As far as the landlord is concerned, No 20A is merely an unsevered component of the Demised Premises as a whole. Furthermore, since all the dwellings have been demolished, it is not clear (without a determined boundary application or a declaration by the court) where the exact boundary between No 18 and No 20A lies – both properties are indistinguishable one from the other. Finally, the Trustees have offered to pay the rent in relation to No 20A but the offer has been refused. It is apparent from the Property Register of No 10 Oxford Street that the “land in this title is liable for collection and payment of previously apportioned rents on 12,14,16,18 and 20 Oxford Street”. I have already referred to the terms of the 1954 Assignment which strongly suggest that the informal apportionments of rent were not notified to the landlord and therefore that the obligation to pay the entire rent remains, as between the landlord and the tenant under the Lease, on the owner of No 10 Oxford Street. This may indicate that the last known tenant under the Lease was the occupier of No 10. In all the circumstances of this case, I conclude that this is not a case where the landlord would have been entitled to forfeit a part only of the Demised Premises, and on its special facts it falls outside the principle set out in the GMS decision.

 

15. Some argument was addressed to me by the Trustees on the impact of Section 167 of the Commonhold and Leasehold Act 2002. It was said that the section protects the tenant in this case. I am afraid that I cannot agree. The section is headed “Failure to pay small amount for short period”. In my judgment, the section does not provide protection to a tenant who fails to pay rent over a period exceeding three years, whatever the amount of the rent. Sub-sections (a) and (b) of Section 167(1) are disjunctive. In the event, however, in view of my decision as regards the validity of the purported forfeiture, this point does not have to be decided.

 

16. I shall therefore direct the Chief Land Registrar to cancel the Applicants’ application dated 12^th April 2007 and received on 13^th April 2007. As to costs, I do not see why the Applicants should not pay the Respondents’ costs on the standard basis. However, I shall give the Applicants the opportunity of persuading me that some other order should be made, and they may file and serve written submissions on the point on or before Friday 5^th December 2008 and the Respondents may respond in writing by 12^th December 2008. If a summary assessment is required, I suggest that the Respondents file and serve a detailed breakdown of costs within 7 days in any event.

 

 

Dated this 25^th day of November 2008

 

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY