[New search]
[Printable RTF version]
[Help]
Case No: CCRTF 99/0850/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 6th April 2000
B e f o r e :
LORD JUSTICE BELDAM
LORD JUSTICE OTTON
and
LORD JUSTICE JUDGE
- - - - - - - - - - - - - - - - - - - - -
|
BENNIE
CHAVEZ AYLWEN
|
Appellant
|
|
-
and -
|
|
|
LEILA
ANTOINE TAKLA
|
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Kim Lewison QC and Mr William Hansen (instructed by Lee &
Pembertons London SW1X 0BX for the Appellant)
Mr Jonathan Gaunt QC and Mr Stephen Boyd (instructed by Louis Glatt
& Co. London W1X 5AE for the Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE BELDAM:
No. 1 Upper Brook Street, Mayfair, is a building divided into six flats. It
was built in the late 1950s, on six floors, with one flat on each floor and a
basement. The basement contains the caretaker's flat and six box rooms. At
the front of the basement is the Porter's lodge which includes one of the
original box rooms. Three smaller box rooms are situated down the right hand
wall. Two which are larger are in the middle. The box rooms were not numbered
or otherwise identified.
The freehold of the block was owned by one of the companies of the Grosvenor
Estate. The six flats were let on long leases. The appellant, Mrs Aylwen, is
the present head lessor. The respondent, Mrs Takla (the defendant), is the
assignee of the lease of Flat 3 on the third floor. The lease of Flat 3, made
on 31st December 1958, demised the flat on the third floor, together with "Box
Room No. 2 identified on the plan annexed to the lease" for a term expiring on
15th December 2019. The plan referred to showed Box Room 2 as the third of the
box rooms backing onto the wall.
The lease of Flat 3 was the only lease which included a box room in the
premises demised. The leases of the other five flats made no mention of a box
room but apparently it was the original intention that those of the lessees who
wished to do so should be allowed to use one of the box rooms in the basement
for storage in return for a storage charge.
The subject matter of these proceedings is the Box Room now numbered 5, one of
the larger box rooms in the middle of the basement. In 1991 when the defendant
took the assignment of the lease of Flat 3, she apparently believed that Box
Room 5 was Box Room 2 described in her lease and shown on the plan annexed to
it. Had she compared the position of the box room shown on the plan as No. 2,
she would have realised that it was not Box Room 5 but when she went to view
Flat 3 she was shown Box Room 5 as the box room which was said to "go with" the
flat and in discussion with her solicitors at the time of the purchase the
matter was not clarified. The agent who showed her the flat was acting on
behalf of a Dutch company Vanol BP ("Vanol"). The sale particulars made no
mention of a box room. On another occasion when she returned to view the
flat and the box room she was shown the box room by the caretaker, a Portuguese
lady Mrs Martens. The lease of Flat 3 had been assigned to Vanol in November
1983.
Employees of Vanol had used Box Room 5 to store suitcases and boxes but no-one
from Vanol nor any of its employees or representatives gave evidence about the
circumstances in which they came to use Box Room 5.
In these proceedings the appellant sought possession of Box Room 5 from the
defendant who claimed to be entitled to occupy it in lieu of Box Room 2. The
defendant's claim was based either on the ground that she had acquired a
possessory title to the Box Room 5 through occupation of it by herself and her
predecessor in title for a period of at least 12 years before the proceedings
were issued or, alternatively, she claimed that the appellant was estopped from
denying her right to possession.
On 25th May 1999 His Hon. Judge Cook decided as a preliminary issue that the
appellant's claim failed and he gave judgment for the defendant holding that
Box Room 5 had become part of the premises demised to her.
The case lasted four days and, as the judge said, one might ask why a case
concerning a box room could justify such resources and expense but the case was
important to both parties. To the plaintiff because she wished to convert the
basement into an additional flat and the position of Box Room 5, if it formed
part of the defendant's demise, would effectively prevent her from doing so.
The plaintiff said the box room was important to her because she purchased the
remainder of the term from Vanol in 1991 believing that Box Room 5 was part of
the premises she was acquiring. The storage space in Box Room 5 was, in fact,
larger than the space in Box Room 2 or indeed of any of the other box rooms and
the size of the box room was a significant factor in her decision to buy the
flat.
The judge's task was not made easier by the fact that there was no evidence
about the original disposition of the box rooms, apart from the fact that No. 2
was in fact demised with Flat 3, that by 1980 the occupation of the box rooms
had become hopelessly muddled and that the appellant's husband who might have
been able to assist was not available to give evidence. He and the appellant
had separated in 1984. The appellant herself gave evidence. The judge found
that, although she was an honest witness, she was a witness who in at least one
instance and arguably two was shown to be mistaken in her recollections. The
judge said that this was scarcely surprising and not in the least blameworthy
but as the two errors related to significant dates he was unable to accept that
the appellant's description of the occupation of the box rooms over the years
when she was familiar with the premises was accurate. In the result the judge
based his findings largely on the contents of some letters from one of the
occupiers, Mrs Leighton, to agents, Hinton & Co., on internal memoranda of
Messrs. Hinton & Co. and from inferences which he saw fit to draw from
these documents which were admitted under the Civil Evidence Act 1995.
The main ground of appeal is that the judge drew inferences from these
documents and from the evidence generally which were not justified, so I must
state the relevant facts in somewhat greater detail.
Mrs Leighton became the occupier of Flat 4 in about 1959. The appellant and
her husband lived in Flat 1 on the first floor from 1979 to 1981. The
appellant's evidence was that she and her family, including Lady Aylwen, made
considerable use of the basement for storage of the family effects. This use
included use of Box Room 5. Lady Aylwen's effects were still being stored in
the basement when she died in the spring of 1989.
Mrs Leighton assigned the lease of Flat 4 to Professor Myers in 1986.
Professor Myers said that from the time he occupied the flat he had the use of
Box Room 2.
The defendant's case, as previously stated, is that at the time she took the
assignment of the lease of Flat 3 from Vanol the agent and the caretaker, Mrs
Martens, showed her Box Room 5 as the box room then used by the occupiers of
Flat 3. She invited the court to infer that Box Room 5 had been occupied no
later than 1986 by Vanol who had used it continuously and adversely and that
she as their successor had also done so. By reason of adverse possession, and
it was said of the doctrine of encroachment, she was entitled to keep it for
the remainder of her lease. Her case was put on the alternative ground that
the appellant, as successor to Mr Aylwen, was estopped from denying that Box
Room 5 was the box room contained in the demise of Flat 3. The judge recorded
the submissions of her counsel in these terms.
"That what was as she alleges done to alter the position on the ground which
she came to know, not least by information from the landlord's caretaker, Mrs
Martens, constituted a representation on the basis of which she took the
assignment, therefore acting to her detriment."
I return to the facts.
The judge said it was probably most convenient to start with Mrs Leighton who
did not give oral evidence and who was probably no longer alive. However Civil
Evidence Act Notices had been given to make admissible certain statements
contained in letters written by her between 1979 and 1984. The judge regarded
them as having considerable weight, being written as they were by somebody with
"no axe to grind in the present proceedings". The correspondence begins in
December 1977 when Mrs Leighton and another resident, Mrs Laykin, had
complained to the agents Hintons that the basement was full of furniture.
Hintons replied promising to clear the furniture as soon as possible. On 29th
November 1979 Mrs Leighton wrote that she had met Mr Aylwen that day and that
he said he knew nothing of belongings of hers which had been removed.
In an internal memorandum from Mr Hinton at South Audley Street to Mr Slater at
Connaught Street Mr Hinton said on 3rd December 1979:
"4/1 Upper Brook Street.
I am enclosing in original, a letter from Mrs Leighton together with a copy of
my reply which will be self-explanatory.
There appears to be an unholy mix-up with the cupboards in the basement but Mr
Aylwen is, as I pointed out in my letter, making a determined effort to get
each cupboard identified and numbered and this I hope will be an end of the
matter."
The letter to which Mr Hinton referred was addressed by Mr Hinton to Mrs
Leighton the same day. After apologising for the mystery as to what had
happened to her goods which "may have been removed from one cupboard to
another", he denied all knowledge of it. He said that Mr Aylwen was
endeavouring to identify each cupboard and would then have them numbered so
that there would be no confusion in the future. He added:
"There is, in the basement, a store cupboard for each flat and one of them will
formally be numbered and allocated to flat 4."
After seeking details of property removed, he pointed out that management of
the property was now being dealt with by the Connaught Street office. On 18th
December Mrs Leighton wrote again. She said that on visiting her storeroom in
the basement all her belongings had gone. There were two boxes in the store
room which the housekeeper thought belonged to the gentleman on the ground
floor. He came down and removed his boxes but did not say where her things
were. She said:
"From whom did he get a key to my store room that I have rented for almost
twenty years? Who gave him permission to put his boxes in?"
She re-iterated that she had approached Mr Hinton and then Mr Aylwen who had no
knowledge of this having happened. She then gave a description of the contents
which she said had been taken.
On 19th January 1980 she made a further complaint to Hintons and this time she
said the key had been given to the gentleman on the second floor. She asked
them to return her spare keys and claimed compensation for goods which she had
lost. On 31st January she wrote again. She had not had a reply. She said
that Hintons as managing agents were responsible "as my key was given to the
gentleman who owns the ground floor flat". She said she was not going to pay
until they attended to the matter:
"We never see a representative from you here to check up on our building if
that is what we pay you for what do you do?"
She said:
"It was and is my store."
She had apparently instructed solicitors to deal with the matter on her
behalf.
On 6th May she complained to Hintons about her bathroom ceiling and water
pouring down every night from overflows "as there is no-one in residence". She
repeated her complaint that her goods had been removed from her storeroom that
"my husband and I had for twenty years".
The next letter, which is undated, is marked as having been received on 13th
July 1982. Mrs Leighton had apparently asked for details of the £500+ "I
pay for services charges". She added:
"Mr Aylwyn who came to see me about my baggage room in the basement said he
would let me know. He wished to take over my baggage room and give me another.
I do not need one as when my goods were stolen from there I decided to store
nothing there. Mr Aylwyn gave me a little compensation for them. He has
always been very helpful. He told me to get in touch with Mr Boot if I need
any help so perhaps when Mr Boot comes to inspect No. 1 flat the house keeper
will bring him up to flat 4."
The next letter, undated but received on 10th July 1984, complained of property
missing from her flat. In the last paragraph she said:
"I have not used my basement room since you asked me to let those moving into
flat 3 so why do I now pay for an empty room?"
Finally on March 31st 1985 she wrote:
"I have no box room or storage room in the basement and I am billed for that.
When flat 3 was sold or let years ago I was asked for flat 4 storage room as I
never used it I said yes then someone moved in here when my friend RIP died
suddenly in flat 3 and are using it. Since I am not storing anything there why
do I have to pay. Will you please attend to this as I find expenses very high
but I like living here.
Thank you for attending to the front door lock. We have had many robberies
here.
When you send my next bill please deduct for the storage room. The house
keeper will I hope know if anyone is using it."
To these letters the judge said should conveniently be added the following:
"Mrs Leighton sells to the Professor in 1986. The Professor's evidence is that
he has box room 2 from then on. Except on the plan on Mrs Takla's
predecessor's lease nobody ever numbered the box rooms. The "new people in
flat 3" referred to by Mrs Leighton are either Maguire who holds for a few
months in 1983 or his assignees, Vanol, who acquire at the end of 1983 and hold
until they sell to Mrs Takla in 1991."
The judge said that this evidence would appear to establish the following:
(1) In 1979 there was confusion as to who had which box room. Mr Aylwen was
supposed to sort that confusion out. Whatever else he did that operation had
not included any numbering or other systematic solution.
(2) Some time before 1984, 1983 is the only obvious time, somebody, either Mr
Aylwen, or the agent, his agents, asked Mrs Leighton to let the people moving
in to flat 3, either Maguire or Vanol, use box room 5.
(3) Mrs Leighton is offered another box room, unidentified, but does not use
it.
(4) In 1985 Mrs Leighton records the new people in 3 who must by then be Vanol
as using her box room 5.
(5) In 1986 the Professor is given 2 ... He is the successor of Mrs Leighton to
her flat and the probability is that 2 is what Mrs Leighton was being
offered.
(6) In 1977, and again probably less certainly in 1982, things are being stored
in the basement outside the box rooms as well as in them.
(7) The loss of Mrs Leighton's effects could be firmly dated to 1979.
In addition he said:
(1) Vanol appear to have used [Box Room] 5 since they took possession in 1983;
(2) at an irreducible minimum and not necessarily accepting Mrs Martens for
this purpose (a) Vanol are in occupation of 5 by the time they come to sell so
they must have taken occupation at an earlier date; (b) an obvious earlier
date is when they arrived, confirmed to a point, at least, by Mrs Leighton;
(3) the landlords are not using 4, 5 and 2 after 1986 at the latest, everybody
accepts they are using 6. Nothing is known on the defendant's side about 1 and
3."
On the basis of these conclusions the judge then considered the evidence of the
appellant and defendant.
He said of defendant's evidence:
"She established to my satisfaction the following: (a) that in 1991 she saw
the box room three times, on the last occasion accompanied by a person who
occupied, or had occupied the flat, and on the second by a representative of
Vanol; (b) the box room was on the first occasion pointed out to her by Mrs
Martens, the agent had the key to the box room and it fitted the lock, as
indicated by Mrs Martens ... (c) when she saw the box room it was locked and
when it was unlocked it was full of mixed contents; (d) the lady on the third
occasion discussed with her that the wardrobes and the box room would
remain."
As previously stated, Professor Myer's evidence was that he had used Box Room
2. He had subsequently made an application for a new lease which included Box
Room 2. Obviously he did not believe that he occupied the box room as part of
his demise.
The judge correctly directed himself that the burden of proving acquisition of
title by adverse possession was squarely upon the defendant. He inferred that
Vanol had occupation of Box Room 5 at the inception of their occupation of
their flat in 1983. He concluded therefore that the defendant and her
predecessor had had exclusive occupation of Box Room 5. He did not make any
finding as to the basis of that occupation.
But in the course of considering the facts he said:
"I have little doubt that in the early days, the late 1970s, there was a good
deal of anarchy. It certainly suggests that a number of the flats just did not
use any box room at all and the Aylwen family used whatever there was to use."
However he came to a point where he said the anarchy started to recede and by
the time Vanol had moved in he held that the evidence showed exclusive
occupation.
It is, however, on the next aspect of his judgment that the issue in this case
principally turns. He asked himself the question: was the occupation
permissive? He directed himself that possession with permission is not
adverse, and posed the rhetorical question:
"Why should it be inferred that whatever was done with Vanol amounted to
permission i.e. I allow you to use this box room as against an indication
factually, this is your box room?"
He pointed out that the particulars of sale when Vanol assigned to the
defendant did not mention a box room at all and he said:
"So far as one can draw inferences I think I am entitled to draw the inference
in the absence of evidence to the contrary that (1) Vanol bought the lease, and
certainly that is the probability I find, took the box room on the footing they
had a tenancy of it. (2) No other arrangement was communicated to Vanol.
Certainly there is no evidence of it. (3) They are likely to have been shown
box room 5 by somebody who would in all probability be either Mr Aylwen or the
managing agent, plainly because it was Mr Alywen who re-arranged the box rooms.
(4) There is no justification on the evidence for finding that Vanol were told
anything specific beyond "this is yours", which would be information and not
permission."
The validity of these inferences is challenged by the appellant.
Although it was not necessary in the light of his holding that the defendant
had established adverse possession, the judge considered the alternative
defence that the appellant was estopped by the conduct of Mr Aylwen, her
predecessor, from denying that Box Room 5 went with Flat 3. By the time he did
so, the judge had stiffened the inferences he was prepared to draw. First he
said:
"(1) It is far more probable than not that Mr Aylwen, then the landlord, put
Vanol in the position of being told that 5 was the box room that went with that
lease. (2) Mr Aylwen, as he is the lessor, must have been taken to know the
contents of his own lease and therefore Vanol were the people who had the
demise of the box room.
(3) The position on the ground where Vanol occupied the box room apparently as
theirs is therefore the creation of Mr Aylwen. (4) Anybody making enquiries
as a purchaser from Vanol is likely to discover that Vanol were apparently the
tenants of a box room and are occupying 5. (5) If they do make that discovery
they will believe that Box Room 5 is the relevant box room. (6) Mrs Martens,
in answer to enquiry from the defendant and the agents as to which was 3's box
room, showed them 5. (7) On subsequent occasions Mrs Takla was shown 5 by
Vanol's people as the box room occupied by Vanol."
Next the judge said:
"(1) Mr Aylwen created a pattern of occupation on the ground which unexplained
(and it was not explained) clearly represented that box room 5 went with flat
3.
(2) He should have known and is to be taken to have known that flat 3 had a box
room in its demise so far as this was relevant.
(3) He ought reasonably to have known that the tenants of flat 3 and any person
taking them, for example, buying or taking a sublet who discovered the position
on the ground ... would believe that 5 went with 3.
(4) Mrs Takla discovered the position ... and received the representation."
Accordingly the judge held:
(a) there was a representation of fact made by conduct; (b) it was a
representation made in circumstances in which the representor so conducted
himself the reasonable recipient would suppose it to be true and intended to be
acted on; (c) it reached the mind of the representee. (d) the representor's
successor in title is bound by it."
Finally the judge held that the defendant had acted to her detriment by taking
an assignment of the flat in the belief that she was entitled to Box Room 5
when in fact the lease referred to Box Room 2.
It is pertinent to make two comments. The first is that there was no evidence
that Mr Aylwen made any representation or created any pattern. The judge had
earlier found that, whatever he did, it did not include any numbering or
systematic solution. The second is that the position of Box Room 5 in no way
corresponded with the position of Box Room 2 as shown on the plan attached to
the lease. Why Mr Aylwen should be presumed to have represented to Vanol and
the defendant that Box Room 5 "went with" Flat 3 with the intention that they
should rely on him, when their own lease clearly showed it did not, I do not
understand. There were no numbers upon the doors of the box rooms and in fact,
for reasons which it is unnecessary to elaborate, the tenants who presently
occupy Box Room 2 had agreed that if the defendant failed to establish adverse
title or proprietary estoppel giving her the right to Box Room 5, she was
entitled to Box Room 2.
The Grounds of Appeal.
Adverse Possession.
Whether or not a person has taken possession of land and whether that
possession is adverse is a question of fact which depends on all the particular
circumstances of the case. On the question of possession, Lord O'Hagan in
Lord Advocate v Lord Lovat [1880] 5 AC 273 at 288 said:
"As to possession, it must be considered in every case with reference to the
peculiar circumstances. The acts, implying possession in one case, may be
wholly inadequate to prove it in another. The character and value of the
property, the suitable and natural mode of using it, the course of conduct
which the proprietor might reasonably be expected to follow with a due regard
to his own interests - all these things, greatly varying as they must, under
various conditions, are to be taken into account in determining sufficiency of
a possession."
The box rooms in question were situated in the basement of the building which
was overall in the occupation of the landlord and was used partly for living
accommodation of the caretaker and for the common services such as the boiler
room. None of the box rooms was numbered. Only one, No. 2, had been allocated
as part of the premises demised with Flat 3. The other box rooms were
apparently used with the permission of the landlord, express or implied, for
storage purposes. It seems from the correspondence quoted by the judge that
Mrs Leighton, at least, paid a charge, or regarded herself as paying a charge,
for the use of Box Room 5. In the absence of special circumstances, use by the
occupiers of the box rooms for storage purposes could not give rise to an
inference that the tenants of the flats were in adverse occupation of the box
rooms. There could not be any question of an ouster of the true owner by a
wrongful possessor.
Paragraph 8(4) of Schedule 1 to the Limitation Act 1980 provides:
"For the purpose of determining whether a person occupying any land is in
adverse possession of the land it shall not be assumed by implication of law
that his occupation is by permission of the person entitled to the land merely
by virtue of the fact that his occupation is not inconsistent with the latter's
present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a
person's occupation of any land is by implied permission of the person entitled
to the land in any case where such a finding is justified on the actual facts
of the case."
I cite this provision, the origin of which is well known, merely to reinforce
the point that in the absence of any evidence most people would assume that the
occupation of a box room in the basement of a block of flats where the
occupiers were tenants of the flats but not of the box rooms would be assumed
to be with the permission or licence of the landlord. The mere fact that the
tenant could lock the door of the storage room to exclude others with a key
provided by the landlord would not affect the normal assumptions. If, as Mrs
Leighton in the present case suggested, a charge was being paid for the use,
there could be no question of possession being adverse. So I would approach
the question whether adverse possession of Box Room 5 has been shown by the
defendant not only on the basis that the defendant had to prove that she and
her predecessors' occupation was adverse but that there would need to be
convincing evidence to justify such a finding.
On this basis I consider the judge's findings based upon the statements in Mrs
Leighton's correspondence and Messrs Hinton's memoranda. As the judge rightly
held, by 1979 there was undoubtedly confusion as to who used which box room.
The judge found that Mr Aylwen did not, in fact, number any of the box rooms or
come up with any other "systematic" solution. It seems reasonably clear that
by 1980 no-one was aware that Box Room 2 was, in fact, part of the demise of
Flat 3.
The judge's next finding was that sometime before 1984, 1983 being the obvious
time, either Mr Aylwen or his agent asked Mrs Leighton to let the people moving
into Flat 3, either McGuire or Vanol, use Box Room 5. This does not seem to
accord with what Mrs Leighton had said in her letter of 13th July 1982. By
that date Mr Aylwen had, according to her, already asked her to take over "my
baggage room and give me another". The letter implied she had already agreed
and that she did not need a box room. There is no evidence that Mrs Leighton
was offered another storage room. She complained she was still being charged
for the use of a storage room but in 1985 she recorded that the new people in
No. 3 were using her box room and that she was still being charged for the use
of a box room. Nor does the fact that Professor Meyers used Box Room 2 in 1986
provide any indication that Mrs Leighton had been offered Box Room 2.
Mr Lewison QC for the appellant was particularly critical of the judge's
finding that when the defendant's predecessor in title Vanol went into
possession of the box room in about 1983, whether as a result of the
re-allocation of box rooms by Mr Aylwen or not, Vanol took the box room on the
footing that they had a tenancy of it. Even if they were likely to have been
shown the box room by Mr Aylwen or his agent as opposed to an agent instructed
by the assignor there was no justification for the judge's finding that Vanol
were not told anything beyond "This is yours". Mr Lewison said that this was a
flimsy foundation erected on the judge's "interpretation" of Mrs Leighton's
letters which could not support his conclusion that Vanol intended to occupy
the box room as part of their title.
In truth there was no evidence to support these findings. Had Vanol believed
that they were occupying a box room in accordance with the terms of their
lease, it would have been obvious to them that Box Room 5 was not that box
room. Why Mr Aylwen should have said "This is yours" with the intention of
suggesting that it was part of the premises comprised in their lease as opposed
to "You may use this one", I do not understand. The fact is that no-one from
Vanol gave evidence and it is speculation to imagine what Mr Aylwen or anyone
else might have said. I can find in Mrs Leighton's letters and in Hinton's
memoranda no justification for the view that if Mr Aylwen gave permission to
occupy Box Room 5 to a representative of Vanol he did so in any way other than
allocating the box room for use by the occupiers. In short, if Mr Aylwen did
give permission, it was to occupy the box room on the same basis as any of the
other lessees were allocated a box room.
In my view, therefore, the defendant did not discharge the burden of showing
that Vanol, her predecessor, had adverse possession of Box Room 5. Nor was
there any basis on which the judge could hold that Vanol occupied it believing
it to be Box Room 2. In short, any occupation of Box Room 5 by Vanol was
permissive.
I come now to consider whether the judge was justified in holding that the
appellant was estopped by the conduct of her predecessor, Mr Aylwen, from
denying her paper title to Box Room 5.
Mr Lewison argued that a representation will not give rise to an estoppel
unless it is clear and unambiguous. The judge considered that Mr Aylwen's
conduct gave rise to a representation so the reasonable recipient would
suppose that a representation made by him was true and intended to be acted on.
But these findings also depend upon the statements he assumed Mr Aylwen must
have made when Vanol's representatives first began to use Box Room 5. Insofar
as the judge went further to hold that, by allowing Vanol's representatives to
use Box Room 5, he had created conditions on the ground which enabled them by
implication to represent that Box Room 5 was in fact Box Room 2 and so part of
the demise with Flat 3, again I do not consider his findings justified. I
think it impossible to spell out of the evidence a representation of fact made
by Mr Aylwen and intended by him to be relied upon and in fact relied upon by
Vanol that Box Room 5 was in fact Box Room 2. The truth of the matter is that
at the time Vanol acquired Flat 3 there is no evidence that anyone appreciated
that any one of the box rooms was part of the premises demised. Whatever Mr
Aylwen did, he did not, as the judge said, number any of the box rooms. At the
highest the judge inferred that either he or the agent said "this is yours".
In my view it is going too far to hold that Mr Aylwen must be taken to have
made a representation to every subsequent assignee of the premises who did not
trouble to check the terms of his lease. I would allow this appeal. In my
view the defendant failed to establish either of the grounds which she alleged
barred the appellant's claim.
LORD JUSTICE OTTON: I agree that this appeal should be allowed for the
reasons given by my Lord.
LORD JUSTICE JUDGE: I also agree.
Order: Appeal allowed with costs, possession 28 days, no order as to
costs in the count below.
(Order does not form part of the approved judgment)
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/108.html
