Did You Miss? Nazir v Begum [2024]

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The Appellants' father had been the registered proprietor of land. He died intestate in 2010. The Appellants obtained letters of administration in 2019...
UK Litigation, Mediation & Arbitration
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Nazir v Begum [2024] EWHC 378 (KB), 21 February 2024

Adverse possession – Sch.6 para.12 – estate subject to a trust – personal representatives

The facts

The Appellants' father had been the registered proprietor of land. He died intestate in 2010. The Appellants obtained letters of administration in 2019 and became the registered proprietors of the land in 2022. They issued proceedings against the Respondent seeking possession of the land. The Respondent's case was that she had been in adverse possession of the land for at least 10 years and therefore had a defence under s 98 of the Land Registration Act 2002.

The trial judge dismissed the Appellants' claim for possession, having found that the Respondent had established a valid defence under s.98 (1). He directed that the Respondent should be registered as proprietor of the land.

The appeal

The Appellants appealed and the key issue for appeal was whether the Respondent could rely upon her adverse possession in circumstances when Sch.6 para.12 provides that "A person is not to be regarded as being in adverse possession of an estate for the purposes of this Schedule at any time when the estate is subject to a trust, unless the interests of each of the beneficiaries in the estate is an interest in possession". The Appellants argued that a 'trust' in Sch.6 para.12 includes a situation which arises upon the death and intestacy as s33 of the Administration of Estates Act 1925 provides that the person's "estate shall be held in trust by his personal representatives".

Mr Justice Freedman dismissed the appeal. He held that personal representatives are not trustees in the conventional sense. Personal representatives have vested in them the entire ownership of the deceased's estate, holding such property without any differentiation between the legal and beneficial interests. The beneficiaries merely had the right to ensure that the representative duly administered the estate. The use of the word "trust" in s.33 made the administrators subject to fiduciary obligations in the management of the estate, but did not make that which was not a trust into a trust.

Further, if para.12 included a trust which did not have beneficiaries, the exception "unless the interests of each of the beneficiaries in the estate is an interest in possession" would be difficult to apply. That wording indicated that beneficiaries were required as in a conventional trust, and that without that, there could not be a trust for the purpose of para.12. Accordingly, the death of the registered owner or the estate being in administration during the alleged 10-year period did not operate as a bar to a claim for adverse possession.

The death of the registered owner of a property or that person's estate being in administration during an alleged period of adverse possession did not operate as a bar to a claim for adverse possession. Although the Land Registration Act 2002 Sch.6 para.12 provided that there could not be adverse possession when the property was subject to a trust, "trust" in that provision did not include the person's estate being held "in trust" by their personal representatives under the Administration of Estates Act 1925 s.33.

Held

Appeal dismissed.

Whether "trust" in Sch.6 para.12 included situation under s.33 – Schedule 6 para.12 referred simply to a trust. Personal representatives were not trustees in the conventional sense: they had vested in them the entire ownership of the deceased's estate, holding such property without any differentiation between the legal and beneficial interests. The beneficiaries merely had the right to ensure that the representative duly administered the estate. The use of the word "trust" in s.33 made the administrators subject to fiduciary obligations in the management of the estate, but did not make that which was not a trust into a trust.

Further, if para.12 included a trust which did not have beneficiaries, the exception "unless the interests of each of the beneficiaries in the estate is an interest in possession" would be difficult to apply. That wording indicated that beneficiaries were required as in a conventional trust, and that without that, there could not be a trust for the purpose of para.12. Accordingly, the death of the registered owner or the estate being in administration during the alleged 10-year period did not operate as a bar to a claim for adverse possession (see paras 43-48 of judgment).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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