Brake & Ors v The Chedington Court Estate Ltd

A beneficial owner’s equitable rights do not confer a common law right to dispossess a legal owner or prior possessor by self-help. Where possession is taken without a court order, equitable rights cannot be invoked retrospectively to defeat the dispossessed party’s common law claim.

An action to recover land turns on the relative strength of the parties’ titles. By contrast, simple trespass vindicates an existing possession. There is no separate common law cause of action for wrongful eviction.

For protection under section 3 of the Protection from Eviction Act 1977, occupation must amount to residence. Occasional or reluctant use of premises as a convenient resort does not suffice.

Mr and Mrs Brake were two of the three registered proprietors of a cottage, but held no beneficial interest in it. They nevertheless remained in possession. Their trustee in bankruptcy acquired the beneficial interest and licensed Chedington to occupy. Acting without a court order, Chedington entered the cottage and changed the locks.

The High Court, in [2022] EWHC 366 (Ch), held that the Brakes had been in possession but dismissed their claims. It reasoned that Chedington could rely upon the trustee in bankruptcy’s equitable entitlement.

The appeal concerned whether the exclusion was unlawful at common law and whether the Brakes were protected as continuing residents by section 3 of the Protection from Eviction Act 1977.

1. Appeal allowed to a limited extent. The Brakes’ exclusion from the cottage was unlawful at common law. Chedington had no right or title at common law which justified interference with their exclusive possession without a court order. Further relief was reserved for consequential submissions.

2. An action for recovery of land is the modern form of ejectment. A dispossessed claimant may recover against anyone who cannot establish a better title to possession. The inquiry concerns the relative strength of the parties’ titles. There is no distinct common law cause of action for wrongful eviction, and section 3 of the Protection from Eviction Act 1977 creates no such cause of action.

3. The Judicature legislation enabled one court to administer common law and equity concurrently, with equitable rules prevailing in a conflict. It did not convert equitable interests into legal titles or otherwise alter the substantive distinction between legal and equitable rights. A court determining a possession claim could therefore give effect to the trustee in bankruptcy’s equitable rights. That did not give the trustee, or Chedington acting for him, a common law right to take possession by self-help.

4. The Brakes held the legal estate and were in possession immediately before the entry. The trustee in bankruptcy’s beneficial interest could have supported an application to the court for possession, and such an application would probably have succeeded. Because no such application or counterclaim was made, the trustee and Chedington could not rely upon equitable principles to defeat the Brakes’ common law rights after taking matters into their own hands.

5. Section 12 of the Trusts of Land and Appointment of Trustees Act 1996 did not confer the asserted right. It concerns occupation rather than possession. The trustee in bankruptcy held his interest as trustee and was therefore excluded from the relevant category of beneficially entitled beneficiaries by section 22(2). Nor could a right of occupation confer possession upon a stranger whose occupation the trust never envisaged.

6. The alternative statutory ground would have failed. Residence is a question of fact and degree. It requires use as a home, rather than occasional use as a convenient resort. The trial judge was entitled to find that the Brakes did not continue to reside in the cottage when they were excluded. Asplin and Arnold LJJ agreed with Lewison LJ.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 1302, allowed the appeal to the extent of declaring the exclusion unlawful at common law and reserved consequential relief.
2. High Court: In [2022] EWHC 366 (Ch), HHJ Paul Matthews, sitting as a High Court judge, dismissed the claims based on unlawful eviction, the Protection from Eviction Act 1977 and recovery of possession.