Fraser and another v Canterbury Diocesan Board of Finance and another

Respondents’ predecessor in title donating land on trust to be used as school — Trust deed defining class of pupils to be educated — School educating children from wider class than that defined in deed — Whether such use triggering reverter under section 2 of School Sites Act 1841 — Whether appellants subsequently acquiring land through adverse possession — Appeal allowed The respondents’ predecessor in title donated land on trust to the appellants’ predecessor for the purpose of founding a school under section 2 of the School Sites Act 1841. Although the trust deed contained the proviso that the school should provide education for certain classes of children and adults, it was common ground that the school had educated children from beyond the designated class. The respondents claimed that the appellants had thereby breached the trust terms, so that the land reverted to the respondents pursuant to section 2 of the School Sites Act 1841. However, the appellants maintained that if any such reverter had occurred it had taken place 12 years prior to the commencement of the Reverter of Sites Act 1987, and they had therefore gained title to the property by way of adverse possession. At first instance, the court had found that the school had not been used solely for the purpose set out in the trust deed because it had admitted both qualifying and non-qualifying persons. However, the judge ruled that such use did not trigger the reverter since the premises were still being used, in part, for the original purpose. The appellants appealed. Held: The appeal was allowed. The judge had clearly found as a fact that the school had ceased to be used solely for the purpose set out in the trust deed. On that basis, the only conclusion that had been open to him was that that purpose had ceased, thus triggering reverter, and title to the land had therefore passed back to the respondents. It was always possible that land donated under the School Sites Act 1841 could revert to a donor without that donor’s knowledge, and the continued use of the land by the donee thereafter could enable that donee to gain title to the land by adverse possession. That situation was addressed by 1987 Act, which provided that, in those circumstances, the donee would hold the land for the donor as trustee. In the instant case, it was clear that reverter had taken place long before the 1987 Act came into force, and that the appellants had been in adverse possession of the land for the requisite 12 years prior to the 1987 Act. On that basis, the appellants had acquired title to the land. Christopher McCall QC and Vivian Chapman (instructed by Furely Page) appeared for the appellants; Christopher Nugee QC (instructed by William Blakeney) appeared for the respondents. Vivienne Lane, barrister