On the Eleventh day of Christmas - Will Scott

On the 11^th day of Christmas… Will Scott from Irwin Mitchell’s Real Estate Disputes team considers the interesting case of Philip Brown (1) Kieron Halstead (2) v Olufolakemi Ololade Atobatele in which the claimants were awarded possession of a property, highlighting the importance of properly documenting parties’ occupation to avoid adverse rights arising.

Mr Brown and Mr Halstead made an application for title to a large semi-detached house in Oxford based on the premise they had been occupying the whole building as their homes since 1996 without paying any rent or acknowledging any superior title to the property, whilst paying all outgoings and upkeep for the building and generally treated the property as their own. 

At the time of the hearing the building was divided in two, with Mr Halstead occupying the basement flat, and Mr Brown controlling the upper floors, living in part himself and sub-letting other rooms.

The original owner of the property was Chief Obasola Atobatele who died intestate in 1989 and on his death the freehold title to the property was vested in the Public Trustee.   In 1994 a Nigerian Court appointed four people as the administrators of Chief Atobatele’s estate, however no order was ever obtained in the High Court to this effect and therefore the property remained vested in the Public Trustee. 

One of the Chief’s administrators challenged the application for title to the property by way of adverse possession by claiming the applicants were in occupation as tenants of the Chief’s estate.  It was found as fact that:

1. Chief Atobatele purchased the property in 1977 and employed an agent to manage it.
2. The agent let the whole of the property to a Mr Baber who then sub-let by the room
3. Mr Brown rented one of the rooms from Mr Baber.
4. Mr Baber fell into arrears of rent and it was agreed between him, the agent and Mr Brown that in 1987 Mr Brown would take over the tenancy of the whole building, although no formal written tenancy was ever entered into between the agent and Mr Brown.  That said Mr Brown was the tenant of the whole building from late 1987.
5. Within a year of Mr Brown becoming the tenant, the basement of the building was physically separated from the rest and as of 1988 Mr Brown had nothing more to do with the basement.  His tenancy only applied to the upper floors.
6. By 1989 the Chief had died and Mr Brown had now fallen into arrears with the rent.  The agent wrote to all occupiers informing them of his intention to revert to Mr Baber being the tenant.   
7. The agent issued proceedings against Mr Brown for possession of room 3 and unpaid rent in respect of the upper floors.   These proceedings were adjourned with liberty to restore but never were. 
8. Fresh proceedings were issued by the agent against Mr Brown a year later in which it was agreed that Mr Brown had a Rent Act tenancy of room 3 in the building.   As part of these proceedings a notice to quit was served on Mr Brown by the agent in 1991.
9. In 1995 Mr Halsted and Caroline Alder were granted a tenancy of the basement flat for 12 months. 
10. The agent died in 1996 following which Mr Brown took over the management and control of the upper floors of the building, letting out the rooms and collecting and keeping the rent.   Mr Halstead remained in occupation of the basement. 
11. Mr Brown ceased paying rent in 1996 and Mr Halstead in 1997
12. In 2007 Abbey Folami was registered as the freeholder of the building however this title was dismissed by the Court in 2014 as being based on forged documents. 

In light of the facts, it was decided that Mr Brown and Mr Halstead should have title to the building.   Key factors in deciding this were that:

1. Neither Mr Brown nor Mr Halstead had written tenancy agreements so time under the Limitation Act 1980 was not stopped from running. 
2. The actions of the Chief’s agent post his death were not binding on his estate;
3. The reasons Mr Brown and Mr Halstead ceased paying rent were not relevant to identify their intention to posses the building for the purposes of their claim in adverse possession.

This case is a good reminder of the importance of properly documenting a party’s occupation of premises, so as to stop any adverse rights arising.   The judgment also contains a lot of discussion as to the meaning and effect of the law relating to adverse possession and how this interacts with other laws such as those relating to limitation.