Adverse Possession: s.53 of the law of Property Act 1925 does not prevent the beneficiary of a trust under s.75 of the law of Property Act 1925 from assigning his interest in the land to his successor in title: Declan Joseph Harkin v. Notting Hill Genesis, Land Registration, REF/2018/0694


Judge Owen Rhys has handed down judgment in Declan Joseph Harkin v Notting Hill Genesis Ref/2018/0694.  The Applicant applied under the transitional provisions of the Land Registration Act 2002 to be registered as the proprietor of a parcel of land forming part of a garden demised to the Respondent.  The Applicant based his claim on adverse possession and argued that the yard was held on trust for him by the Respondent by operation of s.75 of the Land Registration Act 1925.  The Applicant had not been in possession of the land for the requisite 12 years but relied on the occupation by an earlier adverse possessor, Mr M, who had previously gifted the land to the Applicant in 1998.  Unusually, Mr M had himself occupied the land for 12 years which, in principle, meant that he was a beneficiary under an earlier s.75 trust.

In finding for the Applicant, Judge Owen Rhys held that in the case of successive adverse possessors where the earlier possessor had acquired the requisite 12 year threshold before yielding possession to his successor, there was no requirement for him to comply with s.53 of the Law of Property Act 1925 in order to transfer his interest in the land.  By reason of his possession, Mr M had acquired an Asher v Whitlock title which, unlike a beneficial interest under a s.75 trust, was capable of informal assignment.  That occurred when Mr M gifted the land to the Applicant.  In reaching that conclusion the Judge applied the decision in Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 and declined to accede to the Respondent’s submission that Site Developments Ltd v Cuthbury Ltd [2010] EWHC 10 (Ch) was decided per incuriam.

James Sandham appeared for the successful Applicant. The judgment can be found here.