Jasit Singh Dhami v Western Property (London Road) Limited & Anor [2025] UKFTT 1158 (PC)

FIRST-TIER TRIBUNALPROPERTY CHAMBERLAND REGISTRATION[2025] UKFTT 01158 (PC)Case No REF/2024/0485
Between
JASIT SINGH DHAMIApplicantWESTERN PROPERTY (LONDON ROAD) LIMITEDRespondentTERRA PROPERTIES LTDRespondentTitle Number: AGL613366Property: 692b London Road, Hounslow (TW3 1PG)Before Judge Ewan Paton, sitting at Alfred Place, LondonOn 18 th September 2025The Applicant represented himself for First Respondent: Mr. Edward Denehan (counsel, instructed by Gunnercooke LLP)DECISIONDate 2025-09-22

Chaudhary v. Yavuz [2013] Ch. 249

[1]The matter referred to this Tribunal is an application by the Applicant, Mr. Jasit Singh Dhami, to register a lease purportedly granted to him on 13th July 2021. The purported grantor of the lease was the Second Respondent, Terra Properties Limited, which is controlled and owned by the Applicant as its sole director and shareholder. Since the Applicant and the Second Respondent are effectively one and the same, the Second Respondent has played no separate part in these proceedings, but was joined as a Respondent so as to be bound by the outcome.[2]The lease is for a term of 25 years from its date, at an initial annual rent of £25,200. The demised premises are the Second Respondent’s property in freehold title AGL 39987 to Land at 686-692 London Road, Hounslow. This title has been referred to in the Statements of Case and the proceedings generally as “the Blue Land”. It is a relatively thin rectangular plot of land on which business premises, used mostly in recent times as a motor garage, are situated. An extract from its title filed plan is shown below.[3]Until 19th May 2023, the Second Respondent Terra Properties Limited was also the registered proprietor of the much larger freehold title immediately to the south, number NGL 352309, to 686-692 Hounslow Road itself. This consists of a number of buildings which include commercial, retail and residential premises, together with a yard or parking area to the rear. It has been referred to in these proceedings as “the Red Land”. An extract from its filed plan is below.[4]The Second Respondent had been the common owner of these two titles since 12th April 2005. It granted a series of charges, both company and proprietary, to secure lending which the Applicant said eventually exceeded £1.5M. The last of those charges was to Habib Bank Zurich plc on 16th April 2018. On 26th September 2022, that bank appointed Law of Property Act receivers over the Red Land. That land was then successfully sold at auction to the First Respondent on 23rd March 2023 for a price of £2,005,000. Completion took place on 11th May 2023, and the First Respondent was registered as proprietor of that title with effect from 19th May 2023.[5]As stated above, part of the Red Land consists of a yard and parking area to the rear of the buildings. This area has been referred to as the Yellow Land. The illustrative plan showing all three areas in the colours referred to is attached below.The application and issues before the Tribunal[6]The only application before the Tribunal is that of the Applicant, to register the 25 year lease of the Blue Land granted to him by his own company, the Second Respondent. There are and were no charges registered against that title. The First Respondent’s title is only to the Red Land.[7]Why, then, has the First Respondent objected to the application, resulting in the dispute being referred to this Tribunal? One might think that whatever the Applicant and his company do, or whatever rights they grant, as between themselves on the Blue Land, would be of no concern to the First Respondent.[8]The reality is, however, that this is a dispute over alleged easements over part of the Red Land, for the benefit of the Blue Land (or rather, the Applicant’s alleged leasehold interest in the Blue Land). The registration or otherwise of the lease in itself is not the principal issue, although as will be seen below, the First Respondent does take issue with it. But this is solely because of the easements purported to be granted in that lease, and the resulting claim that such rights are binding on the First Respondent.[9]It is therefore clear from the Statements of Case, and very much the parties’ shared intention, that the issue of such easements should be determined, one way or the other in these proceedings. While the parties cannot of course confer jurisdiction on the Tribunal by consent, I am satisfied that the Tribunal does have jurisdiction to determine that issue on this reference.[10]While the principal referred application is for registration of the lease, the Applicant has always clearly wished the burden of the easements in that lease to be registered against the First Respondent’s title. The Tribunal has power, under rule 40(3)(a) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, to impose as a condition of giving effect to an application that entries are made on the titles of properties. The First Respondent has always understood that to be the Applicant’s aim, and this is the reason for its own objection. This being so, such an issue can be determined on this reference without requiring the Applicant to make a separate application to HM Land Registry to note the burden of those easements on the title.The lease[11]Against that backdrop, the lease which the Applicant seeks to register has the following key features:-i) it is dated 13th July 2021, and is for a term of 25 years from that date at an initial rent (subject to rent reviews) of £25,200 p.a. In addition to the principal rent, an “Insurance Rent” and a “Service Charge” are also covenanted to be paid.ii) the premises (“the Property”) defined in Schedule 1 consist essentially of the ground floor premises in the title, but excluding the various structural and external parts of “the Building” within that title.ii) the only easements granted – the “Rights” – are those granted by paragraph 1 of schedule 2 to the Lease. There are three of these. At1.1 is a right of support and protection from the “other parts of the Building”. Clause1.2 is a right for the flow and passage of services (water, soil etc.), through “the remainder of the Building”. So those two rights are wholly confined within the title to the Blue Land. iii) the only easement in the lease which purports to grant any rights over other land is the right at clause1.3 – a: “… right to park one private motor vehicle in the Parking Areas (for this purpose for identification purposes only) so far as a space is available and so far as the Landlord is able to grant such a right …”.The “Parking Areas” are defined as those areas hatched red on the Lease plan (below). These correspond to the “Yellow Land” shown on the illustrative plan above, so are part of what is now the First Respondent’s overall freehold title to the Red Land.[12]At the date of the alleged lease (13th July 2021), Terra Properties Limited was of course still the registered proprietor of the Red Land as well as the Blue Land. So it was in principle a competent grantor of what would have been a leasehold easement over that hatched area.[13]There are, however, four things to note about that right as granted, and the lease in general:-i) it is only of a right to park one vehicle, not in a specified space but in such space as may be available. Such a right is in principle capable of existing an easement (see e.g. Stenner v. Teignbridge DC [2025] UKUT 204 (LC), reviewing the case law on “parking easements”).ii) it would be an implicit right ancillary to such an easement that its user could pass to and from the parking area by vehicle and on foot from the entrance on North Drive – otherwise s/he could not actually get there.iii) I also consider that the right must carry with it the additional implicit right for the ‘parker’ - of the one vehicle permitted - to then pass on foot between the Parking Areas and the demised premises on the Blue Land. The right was being granted as part of a demise of those premises. The obvious inference and implication is that the person who has parked the one vehicle can then walk into the buildings on the Blue Land directly from there, rather than e.g. retracing his steps and walking back out onto North Drive.iv) despite the Applicant’s apparent belief to the contrary, this is not a general and unlimited grant of a right of way over the hatched land to pass to and from the Blue Land, at all times and for all purposes. The marking on the above plan referring to a “right of way” does not amount to such a grant.The only right granted is a right to park one vehicle only, with the above rights ancillary to that. This is better than nothing, and is of some value, but it is not the general right of “access” to the Blue Land for all comers which the Applicant clearly wants to have.The two issues in the case[14]There were therefore two principal issues to resolve at the hearing:-i) was the 13th July 2021 lease genuinely signed and granted on that date?From the outset, the First Respondent has disputed this. Its case has been, and still was at the hearing, that this is a “false document” which the Applicant has backdated for the purposes of this application. The application to register this lease (which was compulsorily registrable within two months of its grant, as a lease exceeding seven years, under sections 6 and 7 Land Registration Act 2002) was only made on 18th December 2023. The First Respondent’s belief, and case, is that the Applicant has created (or at least falsely backdated) this lease in an effort to improve his position in a dispute with it over access to the Yellow Land.ii) if the lease was genuinely executed on that date, and is now substantively registered, did the easement granted in clause 1.3 of Schedule 2 (and the other easements ancillary to it, as described above) bind the First Respondent upon the transfer of that servient Yellow Land (as part of the Red Land) by the receivers to it on 11th May 2023?That issue turns on the application of the relevant provisions of the Land Registration Act 2002, and general principles of land law, on the interest and rights to which a transferee of registered land takes subject.The first issue: the 13th July 2021 lease[15]The Applicant, by the time of the hearing, had dis-instructed his former solicitors. He ably represented himself at the hearing, with the assistance of his son. He had also provided a witness statement, on which he was cross-examined by Mr. Denehan, counsel for the First Respondent.His evidence, and the evidence from other documents in the case, was as follows.[16]He said that the lease was drafted for him by a solicitor friend, at the firm of Lincoln Lawrence who then rented some of the upstairs office premises on the Red Land. He could not provide the friend’s name, and said that the firm has now ceased practising as a result of regulatory intervention. No file documentation or correspondence relating to this lease was disclosed. The Applicant said that the friend provided this draft commercial lease for no charge, and that this was typical of many favours and services which he, his family and friends provide for each other (he gave another example of a roofer).[17]He said that the solicitor provided the draft typed lease to him in 2021, and that he then:-i) signed it, in the presence of a witness (Joseph Short, a driver from West Ealing, who he said is now deceased), in his capacity both as landlord (for the Second Respondent Terra Properties Ltd.) and his personal capacity as lessee.ii) inserted the date on the cover page (“13/07”, in the blank space beside the typed “2021”) and on page 5 (in the “date of lease” section in the Land Registry prescribed information, again beside a typed “2021”).[18]Although the lease contained, at clause 31, an obligation to register the lease within two months in accordance with sections 6 and 7 LRA 2002, the Applicant did not do so. Nor did the solicitor friend who had drafted the lease do this for him. His evidence was, in effect, that he put the executed and dated document aside, in a filing cabinet or drawer, and left it there.[19]He was asked why he had, effectively, granted himself a 25 year lease of these premises. In his witness statement he had said that “I granted the lease to myself in 2021 for effective management of the property, as the occupier, AJM Hybrid Centre Ltd was failing with his rental obligations.” This was a reference to a company to whom, on 29th September 2020, the Second Respondent Terra Properties Limited had granted a “licence” to occupy the Blue Land for a term of four years ending on 28th September 2024, at a monthly “licence fee” of £2,200.00.[20]This “Licence to Occupy” was in evidence. There was no dispute that it was a genuine document, or that AJM Hybrid Centre Limited (hereafter “AJM”) subsequently occupied the Blue Land for the purposes of a motor repair garage and MOT test centre business. What is debatable, as a matter of law and substance, is whether it was a true licence, or in fact created a tenancy of those premises. It is something of a home-made draft, clearly derived from a document used for residential premises (with references to “rooms” and “furniture”, and to not creating any tenancy under the “Housing Act 1988”). It states that it does confer exclusive possession, and purports to reserve rights for the “Licensor” to enter and share possession. It stated that it was personal to the licensee and non-assignable, and terminable for breach or at any time on 90 days’ notice.As every property lawyer and law student knows, however, the labels or purported terms in such an agreement are not decisive as to its status (see Street v. Mountford [1985] AC 809 and cases subsequent to it). If in reality this was a grant of exclusive possession of the premises for a term, at a rent, it created a tenancy; whatever the parties originally called it.[21]From the Applicant’s evidence, and the language which he himself used (in evidence, and at the time he/Terra later terminated the agreement) it seems likely to me that this was in substance a tenancy, with AJM occupying the Blue Land for the purposes of their business, and paying “rent” in the manner of a business tenant. Even if the Applicant/Terra retained and exercised the right occasionally to visit and enter the premises on the Blue Land, that would be consistent with the limited rights of entry (to inspect, or collect rent) of a landlord. There was no evidence that the Applicant/Terra genuinely shared possession of the Blue Land with AJM.[22]That this was how the Applicant/Terra themselves treated and regarded AJM is evidenced by the notice which Terra affixed to the gate onto North Drive on 22nd March 2024 when they re-took possession of the Blue Land. This referred to AJM as “the Tenant” and to their “Lease” having been “forfeited”. The Applicant also referred to them in evidence, repeatedly, as his former “tenant”.[23]It follows from the above chronology that AJM were in possession of the Blue Land at the date of both:-i) the purported grant of the Lease on 13th July 2021; andii) the transfer of the Red Land by the receivers to the First Respondent on 11th May 2023.[24]Although the Applicant’s explanation of why he had granted this lease was not always entirely clear, he appeared to confirm what he said in his statement: namely, that he wished to personally take control of the management and collection of rent (even though the Second Respondent was effectively “him” in a corporate form).There is of course no legal bar to a landlord of premises currently occupied by a tenant granting a longer lease to another party, which then takes effect as a lease of the reversion.[25]The licence/tenancy to AJM did not in itself contain the grant of any express rights to use any land other than the Blue Land itself. There were no rights of way, of access, of parking or any rights over other land granted at all, whether the “Yellow Land” parking area or otherwise.[26]The evidence was, however, reasonably clear that the licensee/tenant AJM did in fact use the entrance from North Drive as an access to the premises, and did in fact park and store vehicles on the Yellow Land area, while it was in occupation of the Blue Land. I am satisfied, from the Applicant’s evidence, the photographs and also from the evidence of Mr. Jasdeep Singh Gosal of the First Respondent, that it was doing so at the time of the transfer to the First Respondent in 2023. Although not all of the photographs in evidence were from this time (some dated back to occupation by previous tenants), I am satisfied that the Google Street View images below, from May 2021 and March 2022, convey a reasonably accurate portrayal of the ‘position on the ground’ at that time and also in 2023.[27]The Applicant’s oral evidence was that he himself also used to sometimes park his car, when visiting the premises, in the areas shown in the photographs above; and would still have being doing so at the date of the transfer to the First Respondent, although he obviously could not give specific parking dates.[28]The Applicant had not disclosed any documentary evidence that he had actually paid all or any of the £25,200 annual rent under the 2021 lease to the Second Respondent, or any “insurance rent” or service charge. He did say, however, that the £25,200 figure corresponded roughly to the rent being charged to and paid by the tenant AJM (£2200 per month, which would actually be £26,400), and that he collected this rent then passed it on his company.Discussion and findings of fact on lease[29]The Applicant was at times argumentative, vague and verbose as a witness. He kept seeking to argue his case with counsel or the Tribunal, or protest about why his land should and must have “access”, rather than actually answering the questions put to him. He had also clearly failed to disclose a number of documents potentially relevant to the case, and therefore appeared (himself, and via his former solicitors) to have no clear grasp of his duty of disclosure in these proceedings. Nor had he made any effort to provide evidence, for example, from the solicitor friend who apparently drafted the lease for him.[30]Despite all of this, however, I am prepared to accept that the 13th July 2021 lease is a document genuinely executed on that date. I do so for these reasons.[31]First, it is clearly a professionally drafted commercial lease, drafted by a solicitor. It contains the various Land Registry prescribed clauses, detailed provisions on rent review, and a range of the covenants and other terms one usually sees in such a document. There is no reasonable basis upon which I could find that the Applicant had drafted it himself, or e.g. pulled it from the internet. Whoever drafted it also inserted the parties’ names and information about the premises.[32]Second, the typed details on the drafted lease include the typed date of “2021”, in the same typeface. I am satisfied that whoever drafted it also put that year on it, and left the specific date of execution to be filled in when it was executed. That supports a finding that this is the year when it was in fact prepared.[33]Third, although the manner in which this evidence was given was somewhat vague, I believe the Applicant when he says that his solicitor friend did this for him for no charge, as part of a network of favours from and to friends and relations. Although unorthodox, and somewhat unprofessional of the solicitors, I believe that this is what happened in this case. The “unprofessional” element of such a favour was in going to all this trouble to draft a detailed commercial lease for a friend, but then simply handing the draft to him to execute in his own time, and not “finishing the job” by ensuring that the executed lease was then substantively registered at HM Land Registry.[34]Fourth, I believe the Applicant when he says that he then signed the draft shortly afterwards, in the presence of a witness, then did nothing further with it – putting it in a drawer or filing cabinet and forgetting about it. He said that he thought he now had the lease, so did not need to do any more. I believe him when he says that he had not really read it in detail, and was unaware of the legal obligation of registration. This evidence fits with what seems to me to be his somewhat homespun and haphazard approach to his businesses.[35]As to precisely why he did this – i.e. grant a lease to himself – it is not strictly necessary to find a reason or motive, if I am satisfied (as I am) that it was in fact executed. It may be that the Applicant had some ulterior purpose, but I do not accept that he has presented a falsely backdated document. One possibility, in this or any such case, is that the lease was a precautionary measure to protect an asset in case the company entered severe financial difficulties or was made insolvent. This was not, however, put to the Applicant. It is also possible that the Applicant thought, as his pursuit of this case perhaps shows, that the lease would give him the additional comfort of a personal parking right on the Yellow Land, which might later come in useful for practical or financial purposes.[36]The first conclusion I reach, in any event, is that the 13th July 2021 lease is a genuine document, executed on that date. It was not argued, in the alternative, that it could be disregarded as a “sham” on the principle of Snook v London & West Riding Investments [1967] 2 QB 786, p802 (and cases following it), as a document intended to give the appearance of creating legal rights and obligations different from the actual legal rights and obligations which the parties intend to create. Whatever the Applicant’s reasons for granting this lease effectively to himself, I consider that it is a genuine lease.[37]There is therefore no good reason to refuse completely an application now to register it, and I will so direct the Chief Land Registrar.Do easements bind the First Respondent?[38]The above issue is, however, not the main or perhaps even the ‘real’ issue in the case. As Mr. Denehan (who was instructed and so came to the case very late) submitted, the First Respondent does not really care what the Applicant does, or what rights or leases he grants, on or over his own or his company’s land. Even if this application to register the 2021 lease were rejected, he and his company could go away tomorrow and execute another 25 year lease of the same land.The main issue, and the First Respondent’s main concern, is the easements issue.[39]These proceedings were preceded by a dispute over access to the Yellow Land. That was in turn preceded by the First Respondent, following its purchase and registration as proprietor of the Red Land, having expressly granted the Blue Land tenant AJM a further tenancy. By a tenancy dated 30th September 2023, the First Respondent granted to AJM a tenancy of the “Parking Areas” (effectively the Yellow Land) for a term of 6 months from 1st October 2023. The First Respondent’s evidence, and case, was that this tenancy has ended and AJM have therefore vacated that land – whether as a consequence of the Applicant/Terra having purported to terminate their tenancy of the Blue Land on 22nd March 2024, or in any event. The dispute arose when the First Respondent challenged the Applicant’s right to erect notices on, or even enter, the Yellow Land.Issue/s not before the Tribunal: reservation of easements by 2023 transfer[40]However much the Applicant protests or pleads generally that he “must have access” to the Blue Land from North Drive, or that there has “always been” such general access, that is not the application or issue before me.[41]That problem, if there is one, seems to me to have arisen from the fact that between 2005 and 19th May 2023, the Red and the Blue Lands were in the common ownership of Terra Properties Limited, but that since that latter date they have been separated in ownership. It is quite possible (and perhaps even likely) that during that time, the Applicant and his company came and went over all parts of those lands as they wished, including using the entrance from North Drive onto what has now been referred to as the Yellow Land.[42]It is fairly basic and fundamental that freehold easements, over one parcel of land for the benefit of another, cannot exist or be acquired (and any previous easements are extinguished) while the two lands are in the common freehold ownership of the same person i.e. “unity of title”.[43]On the separation in registered legal ownership on 19th May 2023, one issue might therefore be whether easements for the Blue Land over any parts of the transferred Red Land were created following that separation. That would depend on whether any such rights were reserved by the transferors (in the transfer of 11th May 2023), who were of course the receivers.[44]That is not, however, an application which has been made or pursued by the Applicant or the Second Respondent. I have not even seen a copy of the 11th May 2023 transfer, but in any event no application has been made to HM Land Registry or referred to this Tribunal on the basis of any easements reserved by that transfer.[45]The only easements for which the Applicant contends by this application are those purportedly granted as leasehold easements in the 2021 lease to him. It is therefore to those that I now turn.Status of easements granted in 2021 lease[46]As I have already stated, Terra Properties Limited as landlord was on 13th July 2021 potentially a competent grantor of easements over its then other, retained Red Land. That is, however, subject to one important qualification.[47]It was the Applicant’s clear evidence that he did not inform the registered charge holder, Habib Bank Zurich plc, of the 2021 lease; still less seek its consent. Habib’s charge was over the Red Land, not the leased Blue Land, but as set out above, Schedule 2 clause 1.3 of the lease purported to grant an easement (the right to park) over part of the land subject to Habib’s charge.[48]By clauses 4.6.2 and 4.6.3 of that charge, Terra Properties Limited covenanted with Habib “not without the previous written consent of the Bank to create or permit to exist or arise any mortgage legal charge further charge debenture deposit of deeds pledge lien or other encumbrance….on or in respect of the Mortgaged Property” and “Not without the Bank’s prior written consent sell assign license sub-licence discount factor or otherwise dispose of or deal in any way with the Mortgaged Property..”[49]It is clear and well-established that:-i) the grant of an easement is a “disposition” of property, and an easement is certainly an “encumbrance”.ii) a mortgagee or chargee is not bound by, and so can sell free under its power of sale, of any unauthorised encumbrances, rights or interests granted without its consent; to which interests the mortgage has priority (see e.g. section 104 Law of Property Act 1925)[50]So on that basis alone, it is difficult to see how the First Respondent, on a transfer of the Red Land from a chargee via receivers, could now be bound by easements purportedly granted by the chargor over the Red Land without the chargee’s consent; any more than it could have been bound by e.g. an unauthorised lease of part of that Red Land.[51]Since, however, this was not how the case was pleaded and argued, I will go on to consider the position under the Land Registration Act 2002 as against the First Respondent as an ordinary transferee of a title under section 29 Land Registration Act 2002.sections 27, 29 and Schedule 3 Land Registration Act 2002[52]Under section 29, the First Respondent – following a “registrable disposition of a registered estate….for valuable consideration” to it was registered as proprietor of the Red Land subject only to the priority of such interests as follows:(i) a registered charge or the subject of a notice in the register,(ii) one which “falls within any of the paragraphs of Schedule 3”.[53]There is no question of the leasehold easements over part of the Red Land in Schedule 2 paragraph 1 of the 2021 lease having been the subject of any “notice in the register”. That being so, they could only bind the First Respondent if they fell within Schedule 3 of the 2002 Act, which sets out those “unregistered interests which override registered dispositions” (formerly known, under the 1925 Act, as “overriding interests”).[54]Under sections 6, 7 and 27 of the same Act, by reason of the compulsory registration provisions applicable to leases in excess of seven years, it is clear that the Applicant’s failure to register the 2021 lease within 2 months of its grant rendered it “void as regards the transfer, grant or creation of a legal estate.” As at 11th and 19th May 2023, he therefore only had an equitable lease, since it took effect under section 7(1)(d) as a “contract made for valuable consideration to grant or create the legal estate concerned”.[55]That meant that any easements created by that lease could only take effect likewise as equitable, and not legal, easements; taking their status from the status of the lease by which they were created. That prevented them from being overriding under Schedule 3 paragraph 3 of the 2002 Act, which gives such potential status only to legal easements.[56]That leaves only Schedule 3 paragraph 2 as a possible basis of overriding status for equitable easements under the 2002 Act, as “an interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation”.Chaudhary v. Yavuz and actual occupation[57]The issue of whether an equitable easement (in that case held or assumed to have arisen by estoppel) could, if coupled with actual occupation, bind a successor in title to the servient land, was considered by the Court of Appeal in Chaudhary v. Yavuz [2013] Ch. 249. In that case, the easement in question was a right of way over a metal staircase in a yard between two properties.[58]The issue and ground of appeal from that case which is relevant to the present is that of Schedule 3 paragraph 2, and whether the party with the easement over the staircase had been in “actual occupation” for the purposes of that provision. The other issue was whether a purchase of the property expressed to be “subject to incumbrances discoverable by inspection” bound the purchaser if he was not otherwise bound by those incumbrances (it was held that it did not).[59]The Court of Appeal first pointed out that the 2002 Act made significant changes to the previous law of registered land and the priority of interest. Amongst these was re-affirmation and strengthening of the principle that the old “doctrine of notice… has no application whatever in determining the priority of interests in registered land.” (paragraph 20). Another important point to note (particularly since the person who drafted the Applicant’s skeleton argument – who the Applicant refused to name when asked – appeared to me to be citing somewhat out of date authority on this point) is that the 2002 Act abolished and removed the former ‘route’ by which equitable easements could acquire overriding status, under section 70(1)(g) of the 1925 Act and the Land Registration Rules 1925“Under the Land Registration Act 1925 an equitable easement could be an overriding interest by virtue of rule 258 of the Land Registration Rules 1925 if enjoyed with the relevant land: see Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204, approved by the Court of Appeal in Sweet v Sommer (Note) [2005] 2 All ER 64. The position is different under the 2002 Act, and deliberately so: see para 8.67 of the Law Commission s report (Law Com No 271). The only provision relevant to easements as such is paragraph 3 of Schedule 3, which is specifically limited to legal easements, and indeed to only some of them.Therefore if the claimant s rights are to be binding under section 29 as being an overriding interest, it can only be by virtue of actual occupation under paragraph 2 of Schedule 3.” (paragraphs 27 and 28, per Lloyd LJ).[60]The Court rejected the submission that the claimant, Mr. Chaudhary, had been in “actual occupation” of the metal staircase for the purposes of Schedule 3 paragraph 2 (paragraph 31). It noted that there had been no clear findings as to its use, other than that “it was used by the claimant s tenants to get to and from their ats on the upper floors” as well as by the defendant’s tenants:
“There was no indication that it was used otherwise than for passing and repassing between the street and the relevant flat or flats. In my judgment such use does not amount to actual occupation.”
[61]It is true that Lloyd LJ did add:
“I do not need to consider the use of the servient land in the case of an easement such as a right to park, where the dominant owner may place a large object on the relevant land and leave it there for what may be a substantial time. That issue does not arise on this appeal and I say nothing about it.”
[62]He also re-affirmed the principle, at paragraph 32, that “Occupation must be, or be referable to, personal physical activity by some one or more individuals”. There were also two further points which he did not consider it necessary to address. One of these was the point that the acts of “occupation” relied upon by Mr. Chaudhary appeared to be those of his tenants (paragraph 34). Yet the 2002 Act removed the former overriding status given, under section 70(1)(g), to a person in actual occupation of land “or in receipt of the rents and profits thereof”. Under Schedule 3 paragraph 2, the actual occupation must be that of the right holder himself.[63]Although the Court of Appeal did not find it necessary to address that point, and decide that case on this additional basis, I consider it is clear (as was submitted in Chaudhary) that the 2002 Act did have this intention and effect. As the Law Commission explained in their final Report (Land Registration for the 21st Century: A Conveyancing Revolution : Law Comm. No. 271), accompanying the 2001 Bill which later became the 2002 Act:-“we recommended the removal of overriding status for the rights of persons who were not in actual occupation but were in receipt of the rents and profits of the land. This proposal was, as we anticipated, somewhat contentious, but was still supported by a substantial majority of those who responded to the point on consultation. It is duly reflected in the Bill, which confines the protection of this class of overriding interest to those in actual occupation.” (paragraph 8.18)“We have explained above, at paragraph 8.18, that the protection that is presently enjoyed by those who are not in actual occupation of land but are in receipt of the rents and profits of the land is not retained under the Bill. As will be apparent from the statement of the general proposition in paragraph 8.54, that change will apply as much where there is a registered disposition as it will on first registration.” (8.64)[64]The Bill was enacted as drafted. The position under the 2002 Act, in force from 13th October 2003, is therefore accurately summarised in the following extracts from Megarry & Wade, The Law of Real Property (10th edition) at paragraph 6-095 and 6-096:
“(g) Actual occupation not receipt of rents and profits. It has already beenexplained in relation to first registration that a person who is not in actual occupation but merely in receipt of the rents and profits from the land can no longer protect their unregistered interest by that receipt. The same is true in relation to registered dispositions.”(h) The meaning of “actual occupation”.…Whether or not a person is in actual occupation of land is a question of fact that depends upon the nature and state of the property in question….First, there has to be some physical presence (and not merely some legal entitlement to occupy), but this does not mean that the person claiming the overriding interest must reside or work on the premises….Second, occupation does not necessarily require the personal presence of the person claiming the right. An employee, agent or a contractor (such as a caretaker or a builder) who is specifically employed for a purpose that entails being in occupation, can occupy on behalf of his or her employer. However, occupation by a licensee for his or her own purposes (rather than for the person claiming the right) will not suffice….Third, actual occupation involves some degree of permanence and continuity. Mere fleeting presence, as where a prospective purchaser or tenant is allowed on to the premises to plan decorations, measure for furnishings, or undertake acts preparatory to moving in, will not suffice…”
Those writers state the effect of Chaudhary to be as follows (at paragraph 6-096):
“a right to use is not a right to occupy. Accordingly, a right that is, or is akin to, an easement, such as a right to use a staircase to gain access to a property, is not a right of a person in actual occupation.”
The principles applied to the present case[65]In the present case, I do not find that the Applicant Mr. Dhami was in “actual occupation” of the Yellow Land on the relevant date of the disposition – 11th May 2023 - so as to confer overriding status under Schedule 3 paragraph 2 on any equitable easement to park which he acquired under the 2021 lease, and so bind the First Respondent.I so find for the following reasons.[66]First, I find that as at that date, the Yellow Land was in use not by the Applicant personally, but by the licensee/tenant AJM for the purposes of its own business, on its own account. Although it seems it did not actually have an express right to use this land under its agreement relating to the Blue Land, I find (as suggested in the photographs) that it was the party which was in fact storing and parking vehicles in this area. It had probably been informally permitted to do so by the Applicant and Terra Properties Limited, but the use was clearly its own.[67]The First Respondent, through Mr. Gosal, was clearly aware of this use, and the fact that the Applicant Terra Properties were retaining the land at the rear (the Blue Land) and that it was currently let to this tenant. Mr. Gosal accepted in evidence that the tenant AJM was also using the Yellow Land for parking and access at that time.[68]Whether or not the extensive parking and storage of vehicles could amount to “actual occupation” for the purposes of Schedule 3 paragraph 2 – the point left open in Chaudhary – such parking of vehicles was not, however, that of the Applicant personally. He is not entitled to rely, under that provision, on the “actual occupation” of others who were merely his (or perhaps only his company’s) tenants or licensees.[69]Second, although the Applicant made a belated attempt in his oral evidence to claim that he personally had also parked in this area:-i) he could and did not give any evidence as to his having done so specifically on 11th May 2023.ii) even if he did park on this land, I find that this can at most only have been an occasional, fleeting and infrequent activity. The Blue Land was let to AJM, and the Yellow Area was clearly being used principally by them (with permission) as part of their MOT and garage business. There was no area specifically reserved for or “occupied” by the Applicant.iii) the Applicant therefore made, at most, only occasional and infrequent exercises and use of any purported easement to park. To that extent, it is analogous to the Chaudhary principle of the mere exercise of an easement (in that case a right of way over a staircase) not amounting to “actual occupation” of the servient land. Occasional use is not occupation.[70]Third, even if the Applicant had parked on this land more frequently, to an extent which might arguably amount to “actual occupation”, the First Respondent would still not be bound under Schedule 3 paragraph 2(c) by:“an interest -(i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and(ii) of which the person to whom the disposition is made does not have actual knowledge at that time”.[71]I find that it is clear, as a matter of fact, that the First Respondent did not, through any of its representatives, have any actual knowledge that the Second Respondent had granted a 2021 lease of the Blue Land to the Applicant (as opposed to there being a lease or licence of it in favour of AJM); still less that such a lease contained the purported grant to the Applicant of an easement of parking over the Yellow Land. The lease was not disclosed or revealed in any of the auction information or documentation. I am quite satisfied that the first the First Respondent heard of it was upon the Applicant’s application to register it in late 2023/early 2024, to which application it then objected. I reject the suggestion, to the extent that this was put to Mr. Gosal, that he was so aware; or that he had had any conversations with the Applicant to that effect; or that he was aware of anything other than the basic point that the land at the rear (the Blue Land) was not for sale and was separately tenanted, as he understood it to AJM.[72]As to whether any potential “occupation” in support of the Applicant’s easement to park would have been “obvious on a reasonably careful inspection of the land at the time of the disposition”, I find that it plainly would not have been. The Yellow Land was, as I have found, mostly in use by AJM, for parking and storage for the purposes of its garage business on the Blue Land. That is what was “obvious on a reasonably careful inspection” of this land, and is what the First Respondent actually saw – not any separate and additional use, in exercise of an alleged parking easement, by the Applicant personally. Even if, amongst all the other vehicles parked and stored there on 11th May 2023, the Applicant had on that day also happened to parked his car somewhere on that land, how could the First Respondent, or any reasonable purchaser, be expected to identify this as the car of a separate private individual exercising a right to park; as opposed to it simply being one of the AJM vehicles?[73]For these reasons, I find that the First Respondent took its title to the Red Land, in title NGL 352309, free of any easements granted in the 2021 lease. Having been specifically invited in these proceedings to consider noting the existence of such rights on the First Respondent’s title, as a condition of giving effect to the registration of the Applicant’s lease, I refuse to do so.[74]The result is that while I will direct the Chief Land Registrar to give effect to the application to register the lease – so that to that extent the application “succeeds” – the burden of the easements granted in that lease will not be noted on the First Respondent’s title. That is a determination of that issue, as part of the “matter” referred to this Tribunal, which is binding on the parties on these proceedings.[75]To make clear that I have, in the course of directing such registration, made findings on the easements issue, under rule 40(3)(a) I will make it a condition of such direction that the following entry be made on the resulting title:-“By decision of the First-tier Tribunal (Property Chamber) dated 22nd September 2025 in case number REF 2024 0485, it was determined that the rights granted in Schedule 2 paragraph 1 of the lease are not binding on the adjoining title NGL 352309, and so have not been noted on that title.”[76]As previously stated, these proceedings did not concern, and so do not decide, the issue of whether any other rights were reserved for the benefit of the freehold title to the Blue Land on the occasion of the transfer of the Red Land to the first Respondent in May 2023. That is a separate issue, on which the parties should take their own independent advice if necessary.Costs[77]While the Applicant has been successful to the extent that his lease will be registered, he has been unsuccessful on the issue which clearly mattered to him (and to the First Respondent) most – namely, the existence or otherwise of any rights for him over the First Respondent’s land.[78]What that means, so far as liability for the costs of these proceedings are concerned, is a matter on which the parties may make representations by the date stated in the order. After that date, I will make any necessary order for costs, and give any necessary direction for the assessment of any costs ordered to be paid. Judge Ewan Paton Dated this 22nd day of September 2025 By Order of The Tribunal