“In its final form, Plan B was as follows. Chedington would put Mr Swift in funds so as to enable him immediately to buy such right and title to the cottage as the liquidator could sell. Mr Swift would then enter into a back-to-back conditional sale to Chedington of such right and title to the cottage as Mr Swift then had, but also clean registered title as a result of an application to the court by him (financed by Chedington). In addition, and in order to demonstrate an appropriate benefit to creditors of the partnership a facilitation fee would be paid by Chedington to Mr Swift, of£30,000 (plus VAT) on the execution of the contract, together with£3000 (plus VAT) per month until completion of the transfer enabling full registration, with a maximum of 12 successive months.”
“all of: (a) the receipt of the Court Order pursuant to clause 3.1; (b) the execution of the Transfer by [Mrs Brehme] pursuant to clause 3.2; and (c) the execution of the Transfer by [Mr Swift] pursuant to clause 3.3”
“I am the trustee in bankruptcy in the bankruptcy estates of Mrs NMK (Alo) Brake and Mr AY (Andy) Brake, having been appointed on29 July 2015 . Copies of my certificates of appointment are attached. I have today purchased all title, rights and interest in [the cottage] from the Liquidators of the Stay in Style partnership. It has previously been accepted by all interested parties and the High Court, as recited in the order attached, that the Cottage was a partnership asset. Accordingly as from today I am entitled to possession and unfettered access to the Cottage. I am also entitled to use reasonable, lawful and appropriate measures to gain entry to, and to secure, the Cottage. On the basis of my interest in the Cottage, I have today granted a Licence to Occupy the Cottage to The Chedington Court Estate Ltd (company registered number: 10571885), with immediate effect. Please, therefore, take this letter as my confirmation that employees and agents of The Chedington Court Estate Ltd have my authority to enter and use the Cottage in accordance with the Licence to Occupy that I have granted, and this letter is evidence of that authority.”
“I am satisfied on the evidence that the cottage was not the Brakes’ home, or even a part of their home, as at18 January 2019 . It was a kind of annex, in which they stored things, where Tom D’Arcy went to play computer games, and where the Brakes had reluctantly stayed overnight in the past when there was a wedding, and did not intend to do so again until there was another wedding, some months away.”
“I take into account all the evidence, including the evidence of control of the cottage and its access by the Brakes, which was well known to AEL’s employees, the negotiations conducted by Mrs Brake on behalf of Chedington to acquire the cottage, and the significant use that was made of the cottage for the benefit of AEL’s business (by freeing up the house for letting). In my judgment, on the whole of the evidence before me, I find that the Brakes did have, and did unequivocally demonstrate, the intention “in [their] own name and on [their] own behalf, to exclude the world at large, including the owner with the paper title … so far as reasonably practicable”
“Although it is trite to say so, it is important to remember that ejectment is not so called because it is a process whereby a plaintiff seeks to have the defendant ejected from his land. It got its name because it was an action in which the plaintiff complained that he had been wrongfully ejected by the defendant from land of which he was rightfully possessed. For this he claimed damages in an action of trespass de ejectione firmae. The plaintiff was a lessee, for a term of years, a termor. His complaint was that he had been ousted by the defendant, vi et armis, from his ferm or farm. A freeholder could not bring this action. A freeholder who was disseised had to bring a real action. This action de ejectionefirmae, of the more humble leaseholder who had been ousted, originally only enabled him to recover damages and mesne profits lost; he could not by it get back into possession. But from the time of Henry VII, perhaps from much earlier, a successful plaintiff in ejectment could have a writ of habere facias possessionem directing the sheriff to restore him to possession of the land for the remainder of his term. This corresponded with the habere facias seisinam by which a freeholder who had judgment in a real action, such as an assize of novel disseisin, could have his estate restored to him (See Reeves, History of English Law (1787), vol. 4, pp. 164-170). The rest of the story is well known. The freeholder by enlisting the aid of friends - who in time became fictitious persons - could use the leaseholder’s remedy and avoid the pitfalls and delays of a real action. After Rolle, who was Chief Justice under Cromwell, had worked out the elaborate device, an ordinary ejectment action was no longer in reality a complaint by a lessee who had been turned out of possession. It was a process by which a landowner could recover his land or establish his title. The nominal plaintiff was one of those ever ready brothers in the law Doe or Roe or of their friends Goodright, Goodtitle or Fairclaim against some obliging casual ejector, Styles, Shamtitle or Thrustout. The old writ de ejectione firmae had then indeed, in the words of Wilmot CJ, been ‘licked into the form of a real action’ (Goodtitle v Tombs (1770) 3 Wils KB 118, at p 120). But it was still a writ of trespass. The allegation, formal and false, on which it depended was that the nominal plaintiff Doe, the lessee of the real plaintiff, had been ejected by the casual ejector, who had retired from the contest leaving the real defendant to defend the action, he being allowed to do so only on admitting lease, entry and ouster and contesting only the question of title.”
“By the old law and practice in an action of ejectment (as I before said) you recovered nothing but damages, the measure whereof was the mesne profits; no term was recovered; but when it became established that the term should be recovered, the ejectment was licked into the form of a real action; the proceeding was in rem, and the thing itself; the term only was recovered, and nominal damages, but not the mesne profits; whereupon this other mode of recovering the mesne profits in an action of trespass was introduced, and grafted upon the present fiction of ejectment; and I take it, that the present action is put in the place of the ejectment at common law, which was indeed a true, and not a fictitious action, and in which the mesne profits only, and not the term, were recovered, for it was no other than a mere action of trespass. You have turned me out of possession, and kept me out ever since the demise laid in the declaration, therefore I desire to be paid the damages to the value of the mesne profits which I lost thereby; this is just, and reasonable.”
“For a long time an action for the recovery of land at law was brought by ejectment, and it was so established as to be trite law—a commonplace expression of law—that in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against any one, and those who sought to turn the man in possession out must shew a superior legal title to his. If, however, they did shew that, still if the person who was in possession could shew that although they had shewn a superior legal title to the possession, yet he had an equitable ground for saying that they should not turn him out, he as the law stood was obliged to go to a Court of Equity, and as the plaintiff there, as the “actor” (to use a civil law expression), to make out that there was a sufficient reason for a Court of Equity to interfere, and to prevent his being turned out of possession, on this equitable ground.”
“…considering especially that the jurisdiction in equity and common law is now vested in every Court of Justice, so that no action for ejectment or, as it is now called, an action for the recovery of land, can be defeated for the want of the legal estate where the Plaintiff has the title to the possession…”
“… the amalgamation of legal and equitable jurisdiction meant that the same form of proceedings could be used to assert either a legal or an equitable title, thus consummating a reform which Lord Mansfield had unsuccessfully attempted in the 18th century when the action of ejectment was confined to claims at law.”
“Then we are thrown back upon the Act itself, and we must recollect, first of all, what the main object of the Act was. It is stated very plainly that the main object of the Act was to assimilate the transaction of Equity business and Common Law business by different Courts of Judicature. It has been sometimes inaccurately called “the fusion of Law and Equity”; but it was not any fusion, or anything of the kind; it was the vesting in one tribunal the administration of Law and Equity in every cause, action, or dispute which should come before that tribunal. That was the meaning of the Act. Then, as to that very small number of cases in which there is an actual conflict, it was decided that in all cases where the rules of Equity and Law were in conflict the rules of Equity should prevail. That was to be the mode of administering the combined jurisdiction, and that was the meaning of the Act.”
“The law stood in this position before the Supreme Court of Judicature Acts, 1873, 1875. It has been argued before us that the difference between legal and equitable interests has been swept away by those statutes. But it was not intended by the legislature, and it has not been said, that legal and equitable rights should be treated as identical, but that the Courts should administer both legal and equitable principles. I think that the clause enacting that the rules of equity shall prevail (Supreme Court of Judicature Act, 1873, s. 25, sub-s. 11) shews that it was not intended to sweep away altogether the principles of the common law.”
“Reliance was placed upon the provisions of the Supreme Court of Judicature Acts, 1873, 1875, and it was contended that the effect of them was to abolish the distinction between law and equity. Certainly that is not the effect of those statutes: otherwise they would abolish the distinction between trustee and cestui que trust.”
“In brief, the position is that an equitable owner had no title at common law to sue in conversion, unless he could also show that he had actual possession or an immediate right to possession of the goods claimed; this substantive rule of law was not altered by the Supreme Court of Judicature Acts, which were intended to achieve procedural improvements in the administration of law and equity in all courts, not to transform equitable interests into legal titles or to sweep away altogether the rules of the common law, such as the rule that a plaintiff in an action for conversion must have possession or a right to immediate possession of the goods.”
“But if a trustee brought an action in ejectment against a beneficiary having the right under the trust to occupy the land, before 1875 the beneficiary might obtain an injunction in Chancery to restrain the action in ejectment, on the grounds of the failure to allow the beneficiary to occupy. After 1875 the beneficiary would not even need to cross Westminster Hall to obtain an injunction from the Court of Chancery. The new unified High Court could regulate the equities in the ejectment claim, and simply dismiss it.”
“Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the 20-year period of continuous and exclusive possession by the trespasser.”
“possession in fact in the plaintiff … is necessary to support an action for a trespass.”
“Possession may be vicarious in the sense that A may occupy land on behalf of B, such that B rather than A is in possession of it: see eg Bligh v Martin[1968] 1 WLR 804 . Vicarious possession may arise where, for example, A is the licensee, agent or agricultural contractor of B. Again, this will depend upon the existence of some agreement or arrangement between them.”
“For the purpose of exercising their functions as trustees, the trustees of land have in relation to the land subject to the trust all the powers of an absolute owner.”
“A bare (or simple) trust is one where property is vested in one person on trust for another, but where the trustee owes no active duties arising from his status as trustee. His sole duty is to convey the trust property as the beneficiary directs him. An example is where property is transferred to T “on trust for B absolutely”
“85. The Law Commission Report on Trusts of Land (No. 181) (1989) defined a bare trust as follows (in paragraph 3.27): “A bare trust exists where the entire beneficial interest is vested in one person and the legal estate in another. The trustee in such a case has no duties other than to obey the beneficial owner, who is, to all intent, the real owner.” (see also Lewin on Trusts, Chapter 1-028) 86. The terms “bare trustee” and “nominee” are often used interchangeably. In essence, a bare trustee and a nominee are “nominal” title holders, holding an asset for another person who is the true beneficial owner for all purposes. A bare trustee is a trustee who is a mere repository of the trust property with no active duties to perform, and with no responsibilities in relation to trust property other than to preserve the property for the beneficiary (and the transferor of the assets). The bare trustee's duties are purely passive, and “bare” or naked of active duties decreed by the settlor. In IRC v Silverts Ltd[1951] Ch D 521 at p 530 the Court of Appeal described a bare trustee of shares in a company as being “a mere name or “dummy” for the true owner.”
“… a question of the rights of members vis-à-vis the corporation (such as that of voting control under its regulations) is to be determined by reference, and by reference only, to the share register beyond which it is not (save possibly in the case of mere “nominee” shareholders) permissible to look; and not that, in the case of a trust, the powers and discretions of exercising votes in regard to shares must be treated as reposing in the trustees without regard to the terms of the trust or the right of beneficiaries to direct such exercise.”
“It is important not to understate Mr Macfadyen’s position. He was not independent of Lady Ingram, but neither was he a mere cypher. His duty was “to deal with the land as Lady Ingram might direct”
“(1) A beneficiary who is beneficially entitled to an interest in possession in land subject to a trust of land is entitled by reason of his interest to occupy the land at any time if at that time— (a) the purposes of the trust include making the land available for his occupation (or for the occupation of beneficiaries of a class of which he is a member or of beneficiaries in general), or (b) the land is held by the trustees so as to be so available. (2) Subsection (1) does not confer on a beneficiary a right to occupy land if it is either unavailable or unsuitable for occupation by him. (3) This section is subject to section 13.”
“In this Act references to a beneficiary who is beneficially entitled do not include a beneficiary who has an interest in property subject to the trust only by reason of being a trustee or personal representative.”
“And a claim by the trustee would inevitably be defeated by section 12(2) which provides that a beneficiary does not have a right to occupy land if it is “unsuitable for occupation by him”
“…what Ground is there for a Court of Equity to take the Possession of an Estate from Cestui que Trust, and to deliver such Possession to Trustees, unless there was some gross Mismanagement in the Cestui que Trust? This Court never takes the Possession from Cestui que Trust, unless there is some strong Reason for doing it…”
“So I will now come to the facts which bear on whether Mrs. Hodgson was, independently of the context ofsection 70 (1) (g) of the Land Registration Act 1925 , in actual occupation in this case. Before Mrs. Hodgson's transfer of the house to Mr. Evans and its registration in his name, it is undisputed and indisputable that Mrs. Hodgson was in actual occupation of it. After the registration, she continued to live there to all appearances and as a physical fact in exactly the same way as before; and so did Mr. Evans. They lived and ate and slept in the house exactly as before. The financial arrangements of payment by Mr. Evans to Mrs. Hodgson for board and lodging and by Mrs. Hodgson to Mr. Evans for investment for her and for the payment of bills continued unchanged. Mrs. Hodgson continued too as the rateable occupier. There was no change in the physical appearance of occupation nor was there any other change at all, except that Mrs. Hodgson transferred the house to Mr. Evans upon oral trust for herself and that Mr. Evans was registered as proprietor. Except that Mr. Evans held the legal estate on trust for Mrs. Hodgson, the transfer and registration made no difference as between Mrs. Hodgson and Mr. Evans. She was absolutely beneficially entitled and could at any time call for a transfer of the legal estate and then be registered as proprietor. Mr. Evans as bare trustee of the legal estate for Mrs. Hodgson was not entitled to occupy the house, but she as absolute beneficial owner was so entitled. After, as before Mr. Evans’ registration, Mr. Evans’ presence in the house was exclusively as lodger and Mrs. Hodgson's presence was in virtue of being absolute owner, legally and beneficially before the registration, and beneficially afterwards. She could terminate Mr. Evans’ presence in the house after the registration just as she could before. As between Mrs. Hodgson and Mr. Evans, her occupation and her dominion over the house was the same after the registration as before. So at all material times, Mrs. Hodgson was in fact in physical occupation of the premises and, more, had the right to occupy them. It seems to me that in general (if this matter can be considered at all independently of context) such physical occupation, even apart from such right to occupy, would constitute what would be meant by actual occupation generally.”
“With those findings I entirely agree.”
“A beneficial owner of land seeking possession of land has, in ordinary circumstances (such as this case), a better right to possession of the land than a bare legal owner who has been ordered by the court to transfer that legal title to the beneficial owner but refuses to comply, even when the bare legal owner is in actual possession of the land at the time the matter is adjudicated. Such seems to me to be in accord with common sense and the authorities and statutory provisions to which my attention was drawn. The contrary position is inconsistent with the duties of trustees and with the paramount importance of maintaining the authority of the court.”
“… if it appear in a special verdict, on a special case, that the legal estate is outstanding in another person, the party not clothed with that legal estate cannot recover in a Court of Law; and in this respect I cannot distinguish between the case of an ejectment brought by a trustee against his cestui que trust, and an ejectment brought by any other person.”
“The principles on which the question here raised is to be decided are clear; that, in a Court of Law, and in the action of ejection, the legal title to the possession, if it conflict with the equitable, must prevail: we cannot prevent a subsisting term from being set up, even by the trustee against the cestui que trust.”
“… a lease from a cestui que trust could not be set up against the trustee in any case without the aid of a court of equity.” (Emphasis added)
“(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and— (a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. (2) In this section “the occupier”, in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy. … (2B) Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions “let” and “tenancy” shall be construed accordingly.”
“(1) Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section.” [ … ] (7) A tenancy or licence is excluded if— (a) …; or (b) it is granted otherwise than for money or money's worth.”
“I cannot see that it would be in accordance with the main principle and purpose of the rent restriction legislation to hold that a man may have statutory protection for any premises to which he may occasionally find it convenient to resort, and in which he may keep furniture and instal a caretaker, when in no true sense of the term are those premises his “home,” for example, where they are merely used as a matter of convenience for occasional visits.”
“The word “home” itself is not easy of exact definition. But the question posed, and to be answered by ordinary common-sense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant’s “home,” or, if the tenant has more than one home, as one of his homes. Occupation merely as a convenience for such occasional visits as I have suggested would not, I think, according to the common sense of the matter, be occupation as a “home”.”
“But as Jenkins LJ observed, the mere use of the phrase animus possedendi requires the further explanation animus possedendi as what? – as a convenience, as a resort, or as a home?”
“If one treats the question as one of fact and degree, as the authorities require that a court should do, it is, in my opinion, impossible to conclude that that limited use of the flat made by the tenant was sufficient to make the flat his second home. The flat was in truth the home, not of the tenant, who slept there on five nights a week and kept his clothes there, but that of the adult stepson, who carried out all an ordinary person's living activities there. On that ground, I would hold that the tenant was not occupying the flat as his residence within the meaningsection 3(2) of the Rent Act 1968 , as incorporated intosection 2(3) of the Rent Act 1977 , and that his tenancy of the flat was not, therefore, protected by the latter Act.”
“But I agree with the county court judge in thinking that Parliament when it enacted section 1 (1) used the singular deliberately, and in this instance did not intend the singular to include the plural. The policy of the Rent Acts was and is to protect the tenant in his home, whether the threat be to extort a premium for the grant or renewal of his tenancy, to increase his rent, or to evict him. … I, therefore, think that the context requires that the words of the subsection "let as a dwelling" be confined to the singular: they mean what they literally say.”
“A house (or part of a house) must be let as a dwelling, that is to say, as a single dwelling, for the tenancy to be protected for the purposes of the Act.”
“Section 3 requires that the occupiers of the property must ‘reside in’ the property. I have no doubt that a person may reside in more than one property simultaneously. But I have found as a fact that the Brakes and Tom D'Arcy had ceased to ‘reside’ at the cottage before18 January 2019 . In my judgment, therefore, section 3 does not apply for that reason also. [emphases added]”