Land Registration: Whether a caretaker’s role in respect of a property constituted occupation of the land (Rock Ferry Waterfront Trust v Pennistone Holdings Ltd – 2021)

Where a caretaker carried out basic duties on an otherwise-unoccupied site, the Court of Appeal considered whether this constituted occupation sufficiently to claim possessory rights.

The background

In Rock Ferry Waterfront Trust v Pennistone Holdings Ltd [2021], the appellant was the registered title holder of freehold land acquired by way of a transfer. The transfer was not subsequently registered by the appellant and title reverted to the Crown, which subsequently transferred the land to the respondent for the sum of £5,000. The respondent registered this transfer and the Land Registry gave the land a new title number as a first registration.

The appellant claimed that it was in actual occupation of the land and objected to the first registration, bringing a counter claim. Present on the site at the time of registration were three items of abandoned and immovable property, being a digger and two shipping containers. The appellant company allowed a caretaker to use the land for whatever purpose he wished, only on the condition that he deterred any intruders and generally kept an eye on it. At the initial hearing, the court upheld the respondent’s claim for possession and title to the land, finding that the appellant’s counterclaim failed as a result of not being in actual occupation. The appellant appealed to the Court of Appeal.

The decision

The Court of Appeal found in favour of the respondent, agreeing with the judge that the caretaker’s role did not sufficiently constitute occupation of the land, and he was simply ‘visiting’ the site.

The appellant claimed that the caretaker occupied the site as the appellant’s representative, attributing his occupation to the appellant. However, previous legal precedents indicated that deterring intruders, keeping an eye on a property or spending the occasional night on site did not constitute actual occupation. The Court of Appeal found that the appellant’s caretaker had not carried out activities more than this and used the land himself as a licensee free of charge. The caretaker did not occupy the land and the appellant could not claim occupation in order to prevent first registration in favour of the respondent.

Advice and action for landlords

This is a useful point of reference for landlords and property developers, providing guidance to state that occasional visits to an otherwise-unoccupied site by a caretaker or security company is unlikely to be sufficient to claim occupation or possession. Land must be occupied and used consistently to prevent any claims to title by third parties.

The decision is also a warning, as ever, that registration of any transfer document is essential to protect property interests. Occasional visits to, or use of, a site is not sufficient to prevent registration or claims to possession by third parties.