Site Reverter

February 25th, 2019

The School Sites Act 1841 (“the 1841 Act”) was passed in order to encourage and facilitate the provision of up to one acre of land for use as “a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge”. In the majority of cases it was used to provide land for local Church of England elementary (or what we now call primary) schools. The purposes set out in the 1841 Act are charitable educational purposes all of which specify a particular use of the land conveyed. The grantor is entitled to select between the statutory purposes as the terms of the trust on which the land is conveyed and may even supplement or modify the statutory purposes with provisions of his own choosing. But, it is the statutory purposes specified in Section 2 of the 1841 Act which determine the duration of the grant. If the land ceases to be used for the statutory purposes selected in the conveyance then title to it reverts to the estate of the grantor.The material provisions are contained in Section 2 of the 1841 Act. But this statutory right of reverter is avoided in the circumstances provided for by Section 14 of the 1841 Act. The effect of a conveyance under Section 2 was to vest in the trustees of the school a fee which was determinable on the site ceasing to be used for the statutory purposes specified in the grant. In that event the title of the grantees terminated and the grantor or his estate resumed ownership of the land free from the trusts of the original conveyance. Determinable fees ceased to exist as legal estates under the 1925 real property legislation, but an exception was made, by Section 7(1) of the Law of Property Act 1925, for determinable fees created by a conveyance under Section 2 of the 1841 Act. The effect of a reverter under Section 2 was therefore to re-vest the legal estate in fee simple automatically in the grantor or his successors in title and to make the original grantees trespassers in the event that they continued to occupy the land. But, in order to prevent the possibility of their acquiring a title by adverse possession against the grantor, Section 2 of the 1841 Act was amended by the Reverter of Sites Act 1987.

On an event occasioning a reverter under Section 2 of the 1841 Act (after 17 August 1987) the land continues to be vested in the original grantees but on a trust for sale in favour of those entitled on the reverter. From the coming into effect of the Trusts of Land and Appointment of Trustees Act 1996 this is now a trust of land with power to sell. Since the original grantees continue to hold the legal estate, but on trust for the successors of the original grantor, this therefore prevents any acquisition by the grantees of a title by adverse possession, but leaves intact the operation of Sections 2 and 14 of the 1841 Act in terms of when a reverter will occur.

In Rittson-Thomas v Oxfordshire County Council (2019) EWCA Civ 200 the Court of Appeal was concerned with two grants of land under Section 2 of the 1841 Act which were made in order to provide the site of a School. The principal issue was whether the removal of the School from its original site to a new site in 2006 triggered a reverter under Section 2 of the 1841 Act. If it did, then it was common ground that a substantial proportion of the proceeds of sale of the old site are held on trust for the claimants as the successors in title to the original grantor. The claimants contend that the closure of the old school building on the original site in 2006 meant that it ceased to be used either as a site for a school or otherwise for the purposes of education within the meaning of Section 2. If there was such a cesser of use in 2006, so as to occasion a reverter, then the County Council accepted that a subsequent exercise of the Section 14 power of sale in 2007 was not effective to restore title retrospectively to the County Council as successors in title to the original grantees. The issue for the Court was whether that cesser of use did in fact occur prior to the sale of the old site in 2007. The claimants accepted that the trustees of the original two conveyances could bring themselves within the provisions of Section 14 of the 1841 Act notwithstanding that the new site already belonged to the County Council and that the old site was not sold in order to fund that purchase. No contract of sale was exchanged until August 2007, by which time the old school site and buildings had remained empty and unused for more than a year.

Patten LJ, with whom Hamblen and Nicola Davies LJJ agreed, said:-

“11.    … Section 14 can in my view be read as accommodating a prior purchase of the new site using, for example, borrowed money and the re-imbursement of that expenditure from the sale of the old site. The trustees could still be said in such circumstances to be selling the old site “for other land or building suitable to the purposes of their trust” and to apply the proceeds of sale of the old site “in the purchase of another site”.

  1. But to give s.14 this broad construction does not avoid the problem created by s.2. Unless the sale takes place prior to the old site ceasing to be used for the specified statutory purposes, a reverter under s.2 will occur. Until 1987 this had the effect of depriving the trustees of their title to the land. Now, as a result of the 1987 Act, they continue to hold the legal estate but on trust for the grantor. Either way a sale of the land to a third party free of the rights of the grantor or his successors in title ceases to be possible.”

Patten LJ then turned to the question whether a cesser of user occurred in 2006 or whether the site continued to be used for the purposes of the School, because the Council wished to sell the land and to use the proceeds of sale to reimburse the cost of constructing the new School buildings. Patten LJ said, allowing the appeal:-

“22.    The 1841 Act was intended … to encourage the conveyance of land for a specified and limited purpose or purposes and on terms that title to the land should revert to the grantor as previously described in the event that the use of the land no longer complied with one or more of those specified purposes. Since the sale of the old site post-dated the removal of the school to the new site by more than a year it is unrealistic to say, as a matter of ordinary language, even on a broad and practical approach to that issue, that the land continued to be used as a site for a school or otherwise for the purposes of education. It is, I think, important to bear in mind that the statutory purposes set out in s.2 of the 1841 Act are charitable educational purposes. They require, in terms, that the land should be used as a site for a school, a school house or otherwise for educational purposes. In each case they limit the use of the land to an identifiable function or purpose.

  1. The judge’s approach to this question of cesser of use as set out in [62] of his judgment was to say that the old site was being sold to raise money to pay for part of the cost of the new buildings and the old site was therefore being used “for the purposes of that public elementary school”. But that is not the statutory question. The issue is whether the land continued to be used as the site for a school or for educational purposes: not whether it provided a means of re-imbursing the County Council for its expenditure on the new school. Expenditure on the improvement of other premises used for the purposes of the trust is a permissible use of the proceeds from the sale of the existing school site under s.14. But that power is only exercisable up to the moment when the land ceases to be used for those statutory purposes … I am unable to accept that, by keeping the old site vacant pending a sale, the County Council continued either to use the land as a site for a school or to use it for educational purposes. Both require the active use of the land for the education of children. I would accept that this could include ancillary activities such as the use of the site as a playground or for meals. But, in this case, the old site remained vacant with no further possible use for educational purposes.”

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