Kornhauser, R (on the application of) v Land Registry

An assured tenant of part of a building does not acquire the freehold of the whole building merely through continued occupation, however long the occupation lasts or however many other flats are vacant. Exclusive possession of the tenant’s own flat is distinct from ownership of the whole registered title. A tenant seeking registration of the freehold must identify a valid statutory or common-law basis for that claim. No general doctrine of “interversion of possession” enables possession of one part of a building to become ownership of other property.

The claimant occupied one flat in a building owned by Notting Hill Housing Trust under an assured tenancy beginning in 1995. The other flats in the building had been vacant for several years. The Land Registry refused to register the claimant’s asserted interest in the house.

A previous application for permission to apply for judicial review had been refused by a Deputy High Court Judge, although the time point relied on in that decision was subsequently shown to be wrong. On renewal, the claimant confirmed that he sought registration as freehold owner of the entire building, relying principally on actual occupation, exclusive possession, proprietary estoppel, unconscionability and “interversion of possession”.

The central issue was whether occupation of one flat under an assured tenancy could confer or justify registration of the freehold title to the whole building.

1. Permission refused. The claimant’s asserted right to registration of the freehold was misconceived.
2. An assured tenancy of one flat does not, without more, confer any right to acquire the freehold of the whole building. The fact that the other flats were vacant, and the length of the claimant’s occupation, did not alter that conclusion.
3. The court distinguished between exclusive possession of the claimant’s own flat and what he described as exclusive ownership of the whole registered title. The tenants’ rights derived from the landlord’s freehold ownership of the entire building, creating an ordinary hierarchy of title.
4. The claimant identified no authority for a common-law doctrine of “interversion of possession” capable of converting possession of one property into ownership of other property not possessed. An article concerning interversion did not assist, since it addressed a change in the basis of possession of particular property.
5. The claimant did not rely on a statutory right to registration. Section 42 of the Leasehold Reform, Housing and Urban Development Act 1993, the only potentially relevant provision identified by the court, concerned an application for a new lease which could, in specified circumstances, be registered; it did not support the claim to the freehold of the whole building.
6. The Land Registry could not properly register the claimant as freehold owner of the property under title LN229821. The renewed application was therefore refused. A transcript was ordered.

1. High Court (Administrative Court): A previous application for permission had been refused by Ms Ingrid Simler QC, sitting as a Deputy High Court Judge. The renewed application was heard by Mr Justice Edwards-Stuart, who refused permission.