Kiran Rajaram Patwardhan & Anor v Ivygate Developments Limited
[2022] EWHC 3367 (Ch)
Cyntra Properties Limited v Julie Gillborn & Anor
10 March 2023
[2023] EWHC 759 (Ch)
High Court
Two tenants tried to claim the roof space above their flats. They didn't show up to court to defend themselves, so the judge ruled that they can't have the roof space because they hadn't lived there long enough.
Key Facts
- •Cyntra Properties Limited (Claimant) owns a property with two blocks of flats.
- •Julie Gillborn and Kevin Paul Martin (Defendants) are leaseholders of flats below the roof space.
- •Claimant obtained planning permission to add a floor, which Defendants oppose.
- •Defendants applied to register leasehold title to the roof space above their flats based on the doctrine of encroachment.
- •Claimant brought proceedings seeking declaratory relief.
- •Defendants did not attend the hearing or file a defence.
- •Defendants withdrew their Land Registry applications but made no concessions.
Legal Principles
Doctrine of encroachment: A tenant may acquire leasehold title to other land of their landlord through long-term adverse possession.
Megarry & Wade, The Law of Real Property (9th ed) [7-041]
Default judgment: In default of a defence, the court grants judgment based on the claimant's unchallenged case. Declarations can be granted in default judgments, but caution should be exercised.
CPR rule 12.3, CPR Part 23, Suttle v Walker [2019] EWHC 396, Goldcrest Distribution Ltd v McCole [2016] EWHC 1571, Wallasteiner v Moir [1974] 1 WLR
Adverse possession for encroachment requires 12 years; surrender and re-grant restarts the clock.
Smirk v Lyndale Developments [1975] 1 Ch 317, Tabor v Godfrey (1895) 65 L.J.Q.B. 245, Tower Hamlets London Borough Council v Barrett [2005] EWCA Civ 923
Outcomes
Default judgment granted for the Claimant.
Defendants did not defend the claim; the court found the Claimant's case unchallenged and sufficient for declaratory relief.
Declaration that neither defendant is entitled to register the roof space as an accretion to their lease.
Less than 12 years of adverse possession under current tenancies; surrender and re-grant restarted the clock.