Success in unlawful eviction claim in the Court of Appeal
Alexander Learmonth KC and Jon Colclough succeed in unlawful eviction claim in the Court of Appeal: Brake v Chedington Court Estate Ltd [2022] EWCA Civ 1302
Reference: CA-2022-000488
Date: 11 October 2022
Court: Court of Appeal (EWCA Civ)
Facts
This case offers a tidy illustration of the principle of relativity of title and an illuminating summary of the history of the action for ejectment. The Court confirmed that a beneficial owner under a bare trust has no right at common law to possession as against a trespasser or the legal owner.
Further Facts
The claimants, Mr and Mrs Brake, were evicted from a cottage in which they had lived from time to time. No court order was obtained. They had lived there as licensees of a partnership in which they were partners. When the partnership was wound up, the liquidator assigned the beneficial interest in the cottage to the Brakes’ trustee-in-bankruptcy. Legal title remained registered in the names of the Brakes and one other. The trustee-in-bankruptcy then purported to grant a licence to the defendant, Chedington, who forcibly took possession.
At trial, the Brakes represented themselves. The judge, HHJ Matthews sitting in the High Court, held that as licensee of the sole beneficial owner, Chedington had a better right to possession than the Brakes, who were bare legal owners. An alternative claim under the Protection from Eviction Act 1977 was also rejected on numerous grounds.
Comment
Brought in to represent the Brakes on appeal, Alexander Learmonth KC and Jon Colclough of New Square Chambers persuaded the Court of Appeal that HHJ Matthews had erred. The claim was a common law one, and no trust claim was before the court. The trustee-in-bankruptcy was therefore not entitled to possession against the Brakes, even if a trust claim would have succeeded. Consequently, the second ground of appeal under the 1977 Act did not arise — the Act only prevents someone with a right of possession from enforcing it without a court order.
Practice Area
Property and
Company Law
