Cyntra Properties Limited v Julie Gillborn & Anor

On an application for default judgment, the court may grant declaratory relief without inter partes argument in a clear case, provided it proceeds on the pleaded and verified evidence and considers possible injustice or prejudice to affected third parties. A tenant claiming an accretion to a lease through encroachment must show 12 years of adverse possession of the landlord’s land. A surrender of the lease, including a surrender and re-grant, restarts that period because the additional land is subject to the tenancy and determines with it.

The claimant property developer sought declarations concerning applications by two long leaseholders to register roof spaces above their flats as accretions to their leases under the doctrine of encroachment. The defendants withdrew their Land Registry applications, did not acknowledge service or file defences, and declined to defend the claim. The claimant therefore applied for default judgment, alternatively for determination of preliminary issues.

The central issues were whether 12 years of adverse possession was required, whether a surrender and re-grant restarted time, and whether declaratory relief could properly be granted in default.

1. Default judgment and declarations. The prerequisites in CPR rule 12.3 were satisfied. Although the relief did not fall within CPR 12.4(1), a Part 23 application was appropriate. On default, the court determines the remedy on the basis of the claimant’s unchallenged pleaded case, assuming it to be correct unless the claim is impossible or a legal threshold is unmet: Suttle v Walker [2019] EWHC 396 at [36].
2. Declarations are not categorically barred on default judgment. They should ordinarily be withheld without inter partes argument, save in the clearest cases. The court must proceed on the evidence, consider prejudice to third parties, and balance those matters against proportionate use of court resources, applying Goldcrest Distribution Ltd v McCole [2016] EWHC 1571 and the overriding objective in CPR rule 1.1.
3. Encroachment. A tenant must adversely possess the landlord’s land for 12 years before the doctrine can operate. The resulting interest is an accretion to the leasehold, rather than extinguishment of the landlord’s paper title. The court accepted the analysis in Smirk v Lyndale Developments [1975] 1 Ch 317, while noting that the decision was overturned on appeal for different reasons, and observed that the 12-year requirement was treated as uncontroversial in Tower Hamlets London Borough Council v Barrett [2005] EWCA Civ 923.
4. A surrender of the lease, including a surrender and re-grant, causes time to start again. The additional land is subject to the tenancy and necessarily determines with it. The defendants’ leases, granted in 2019 and 2011, could not satisfy the 12-year period by the issue of proceedings in 2022.
5. There was no realistic prospect of inter partes argument and no identified prejudice to third parties. A preliminary-issue trial would waste court resources. The court therefore granted the limited declaration sought: neither defendant was entitled to have the roof space above their flat registered as an accretion to their respective leasehold title.