In The Media

The Practical Lawyer
December 2005/ January 2006
School Sites Act 1841 encouraged landowners to gift land to be used as schools for the working classes.  Under that Act, if the land ceased to be used for that purpose, then the land would revert back to the original donor.  That process was subsequently amended by the Reverter of Sites Act 1987, which introduced a trust mechanism for the reverter, so if the site is no longer used for the 'permitted' purpose, then the property will continue to be held on trust for those who would have been entitled to the reverter.   But, this does not apply if the claim of the original donor (or, more realistically, his estate) was statute-barred in 1987.  The effect of this was that, if the permitted use had ended before 1975, then it would be too late for the land to revert to the donor's estate (and so it could be retained by the existing landowners).  But, if the permitted use had not ended by that time, and thus there had been no reverter, then the landowners would be holding the property on trust for the donor's estate.

How relevant is this legislation today?  The answer is that it is surprisingly important in 1981 it was reckoned that 2000 schools were still subject to this legislation.  Plus, of course, the 1987 Act also applies to sites conveyed for other charitable purposes, such as places of worship or literary or scientific institutions.  The end result is that there are several thousand institutional sites that are subject to the legislation, and the result has been assiduous research by genealogists who have identified such sites, and then tracked down the descendants of the original donors ....

Needless to say, the courts have sometimes been reluctant to uphold such claims.  However, a recent HL decision ignores such policy concerns and upholds the basic legal principles:  if there has been no reverter prior to 1975 then there can have been no adverse possession.  This was confirmed in the context of a school for the 'children and adults' of the 'poorer classes', which had operated an open-door policy for many decades and had not educated adults since 1903.  Despite that, it was held that there had not been a cesser of the original permitted use, given that there was no evidence that any child from the  'poorer classes' had ever been refused entry, and no direct evidence to show that the purpose of the school was no longer the education of the poor.  Thus, there had been no reverter prior to 1975.

Clearly, this latest decision will encourage a new spate of claims.  There will be many instances where such sites have been sold on the mistaken assumption that the donor's estate will have no claim (and that can have serious implications for dioceses and other institutions that may have reinvested or spent the proceeds of sale).

Trust & Estate Practitioner
December 2005

FRASER AND FRASER WINS HOUSE OF LORDS CASE

Genealogists and probate researchers Fraser and Fraser has won a case before the House of Lords over the rights of beneficiaries to the proceeds of a school site.  This is likely to lead to other beneficiaries [on similar cases]

Fraser and Fraser won its appeal to the House of Lords under the 1841 School Sites Act.  The case involved a deed dated 5 April 1866, which set up a school to educate the poor in the St Philip’s parish in Canterbury, Kent.  Philippe Fraser, case manager of Fraser and Fraser, said that in accordance with the School Sites Act 1841, the deed contained a reverter clause which stated that the school would be returned to the original donors if it subsequently closed.

When a public notice was put up before the school was scheduled to close in 1995, Fraser and Fraser conducted a search to find the successors of the original owners so they could receive their entitlement.  Once Fraser and Fraser had obtained the agreement of these successors, it contacted the school.

Mr Fraser said that to circumvent the return of the school to the donors, the Canterbury Diocesan Board of Finance (CDBF) sold it one month before its closure.  The Court of Appeal rejected this approach in a separate case brought by Simon and Nathan Fraser in 2001.

In response, the CDBF argued that the school had not been used as a place to exclusively educate the poor from the local parish for several decades.  It added that those entitled to the land should have insisted on the school being closed down in the 1940s or 1950s when children were admitted who did not fall into the above category.

As this did not happen, the CDBF was claiming adverse possession of the school because more than 12 years had passed since the school had failed to exclude certain children.  This argument was rejected by the High Court although it was successful in the Court of Appeal.  But the House of Lords did not accept this ruling and Lord Hoffmann said: “In my opinion, the decision of the Court of Appeal on this point was wrong.”

Mr Fraser added that all five Law Lords voted unanimously in favour of the appeal against the CDBF.  “It is unbelievable the school should have argued that it wanted to keep the proceeds of the sale by using squatter rights.  This case should never have gone to trial.

“The victory by Fraser and Fraser is significant as it is the first time the House of Lords has heard a case concerning the School Sites Act of 1841.

“It is unlikely any other case would have any need to be heard by the House of Lords and therefore this will be deemed the leading case on the legislation.  It will affect a number of other schools which were set up under the same Act, as and when they close”.

Channel 4 News
7 November 2005
“Dozens of people whose ancestors donated land to churches and charities to build schools on more than a century ago are in line for an unexpected payout. According to the School Sites Act of 1841 - the land had to be returned to the owner - or their descendants - if the school ever closed. But that didn't always happen. Now the House of Lords has ruled the Church of England must give back money they got from illegally selling a school in Maidstone - and there are another 17 similar cases.”
There was an in-depth piece on the 7pm Channel 4 News.
Click here to watch the clip (requires Windows Media Player)

Estates Gazette
5 November 2005
An article appeared in the Estates Gazette. The article is available to subscribers on their website.

The Church Times
4 November 2005
Canterbury defence rejected
By Shiranikha Herbert, Legal Correspondent

THE CHURCH of England suffered an important defeat in the House of Lords last week, when five Law Lords ruled unanimously that the descendants of the 19th-century donors of land for a school site were entitled to the proceeds when the school was closed and the site was sold in July 1995.

The appeal to the House of Lords concerned St Philip’s Church of England Primary School, Melville Road, Maidstone. The school was on land conveyed to the school trustees, who were the minister and chapel wardens of St Philip’s.

The conveyance was by a single deed dated 5 April 1866, expressed to be made under the authority of the 1841 School Sites Act, and stated that the land was "to be forever hereafter appropriated and used as and for a school for the education of children and adults of the labouring manufacturing and other poorer classes in the ecclesiastical district of Saint Philips . . . and for no other purpose". In 1952 the title to the school premises was vested in the Canterbury Diocesan Board of Finance (DBF).

The 1841 Act enables a grant of land (not exceeding one acre) to be made to trustees 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". Upon the land, "ceasing to be used" for those purposes, the site would "immediately revert" to the grantor or his descendants.

The effect was that, if a sale occurred, but the trustees of the school remained in possession for a further 12 years, any claim by a descendant would be statute-barred — in other words, it would lapse.

The 1987 Reverter of Sites Act changed this, so that, whenever a school was sold, the trustees were required to hold the proceeds for the persons who would have been entitled under the reverter. The new Act conferred no rights upon any person whose claim as a beneficiary was statute-barred before the Act came into force on 17 August 1987. In effect, then, claimants were able to apply for a reversion in the case of any sale made less than 12 years before the Act, i.e. after August 1975.

TWO BROTHERS, Simon Richard Fraser and Nathan George Fraser, are genealogists. They tracked down the descendants of the original grantors of the site in Maidstone, Jane Mercer and Lewis Wigan, and bought up their interests. The Fraser brothers claimed that, as the assignees of those who would be entitled to the reverter under the 1841 Act, they were now entitled to the proceeds of sale.

The DBF defended the claim on the ground that the Frasers’ title was statute-barred. The reverter, the DBF said, occurred long before the school closed, and, in any event, before 17 August 1975.

The Board’s contention was that, by 1947, the purposes for which the land was being used had changed: instead of being used as a school for the children of "the labouring manufacturing and other poorer classes" in the ecclesiastical district, in accordance with the trust deeds, it was being used as a school for any children, whatever their means or place of residence. It was at that point, it was argued, that the reverter occurred, and, as the DBF had been in irregular occupation of the premises since then, the Frasers’ claim was too late.

There was evidence that, over the years, there had been changes in the characteristics of the children who attended the school. Some of them came from middle-class streets of owner-occupied houses. Although throughout the life of the school the major-ity of the pupils were resident in the parish, and came from families that could properly be described as poor, some were resident outside the parish, and some came from parts of Maidstone where the residents were relatively prosperous. There was, however, no evidence that any child from the "labouring manufacturing and other poorer classes" had ever been refused entry.

The issue before the House of Lords was whether the school had thereby ceased to be used for the purposes of the 1841 Act of "educating poor persons". Lord Hoffmann said that in his opinion there was insufficient material from which to draw the inference that the purpose of the school was no longer the education of poor persons. The admission of some children from better-off families was explicable on other grounds — for example, keeping up the numbers or income to make the school viable for the purpose of educating poor persons, or improving the education of poor persons by adding some children with a more literate home background or more demanding and articulate parents.

The evidence did not support the finding, Lord Hoffmann said, that the trustees of the school had acted in breach of trust, let alone a finding that the purpose of the school had become different.

The DBF was not entitled to ask the court to assume that its predecessors must have acted in breach of trust when other inferences, consistent with a proper performance of their duties, could reasonably be drawn, the Law Lords said. Until it closed, the school educated the poor of the parish of St Philip. There was no evidence inconsistent with the school having been used for that purpose.

THIS DECISION, at the highest judicial level, has significant repercussions for the Church, since it affects any church school built on land donated under the 1841 Act and closed since 1987. In many cases, the proceeds of sale have been used for other education projects, and the land redeveloped.
(You can read the news story by clicking here.)

The Church Times
4 November 2005
by staff reporters in the news section

THE DIOCESE of Canterbury is counting the cost of a failed attempt to hold on to the proceeds of the sale of a Church of England school in Maidstone.

At the end of last week, the House of Lords issued a ruling that the diocesan board of finance was not the legal owner of the land on which St Philip’s School, in Maidstone, Kent, was built. Under the terms of the 1841 School Sites Act, once the school was closed, ownership automatically reverted to the descendants of the two people who had donated the land in 1866. Eighteen descendants have been identified by Fraser & Fraser, a London firm of genealogists. Philippe Fraser said on Wednesday that the firm had acquired the rights of title from three or four [of the 18] descendants....

In the Maidstone case, the diocesan board of finance had argued, paradoxically, that it had long ago breached the terms of the 1841 Act by admitting pupils other than the poor of the parish. Consequently, the Frasers’ application was out of time. The Court of Appeal upheld this defence, but Fraser & Fraser appealed to the House of Lords. The Law Lords who heard the case voted unanimously in favour of the Frasers....

you can read the full article by clicking here.

Solicitors Journal
4 November 2005
Genealogists win in House of Lords

In a landmark House of Lords case, a genealogist firm has successfully taken on the church over ownership of a school for the poor.

Five law lords came down unanimously in favour of leading probate researchers Fraser & Fraser, overturning a Court of Appeal decision in favour of the other party – the Canterbury Diocesan Board of Finance (CDBF). The dispute revolved around the School Sites Act 1841 and is the first time any case on this legislation has reached the House of Lords.

The case involved a school near Maidstone that was donated to the church in 1866 by Jane Mercer and Lewis Wigan for “the education of children and adults of the labouring, manufacturing and other poorer classes in the Ecclesiastical District of St Philip Maidstone”. Under the deed for the donated land, if the school ever closed its ownership would revert to the donors.

In 1995 the school was put up for closure and Fraser & Fraser undertook the task of finding the relatives of Mercer and Wigan to notify them of their entitlement, and informed the CDBF of the situation. Upon hearing the news, the CDBF sold the school before its official closure for £400,000.

In the Court of Appeal, the CBDF successfully argued that since the school had not been used exclusively for the education of the poor – as specified in the original deed – since the 1940s, and it had not been consequently closed by the original owners, ownership had passed to them. However, the Lords overruled this argument, stating that it was right that the school provided as much education as possible.

The Independent - Law Report
2 November 2005
There was a Law Report in the Independent on Wednesday 2 November 2005 on our School Sites Case. It is too long to quote here.

The Times Law Report
31 October 2005
There was a Law Report in The Times on Monday 31 October 2005 on our School Sites Case. It is too long to quote here.

The Incorporated Council of Law Reporting for England and Wales
The Incorporated Council of Law Reporting for England and Wales reported the court verdict from the House of Lords on the 28th October 2005. This is now available to subscribers only.

The Daily Telegraph
29 October 2005
Defeat over sale of school land to cost Church millions
By Jonathan Petre, Religion Correspondent
 
The diocese of Canterbury will now have to pay back the proceeds of the sale of a church school site to descendants of the landowner who granted the land 130 years ago.

The House of Lords ruling is expected to cost the diocese hundreds of thousands of pounds.

…A spokesman for Fraser and Fraser, the firm that won the legal victory, said they had been "shocked" by the way that the Church had tried to deny people their rightful claims.

The dispute centred on St Philip's infant school in Maidstone, Kent, which was sold by the diocese in 1995 for £112,000. The land was recently resold for about £400,000.

Simon and Nathan Fraser, genealogists who specialise in tracking down beneficiaries to wills, said the money should be distributed to the ancestors of Evan Lake who granted the land to the parish in 1872.

The brothers said the Church was obliged to share out the proceeds of the sale…

The diocese said, however, that the school had begun changing its character from the late 1800s, when it stopped being exclusively for the poor of the parish. As a result, the diocese said, its value was no longer "owned" by ancestors of Mr Lake. But the Law Lords rejected the diocese's argument and it will now have to pay the beneficiaries.

The Times
29 October 2005
Church to pay the price for selling Land
By Ruth Gledhill, Religion Correspondent

The widespread practice of selling school sites could prove to be a costly mistake.

The Church of England is facing a bill which could run into millions of pounds after it lost a legal battle over selling redundant church schools and keeping the proceeds.

The historic judgment in the House of Lords came after two brothers who specialise in genealogical research challenged the Canterbury Diocese over its sale of a primary school near Maidstone…

Under the 1841 School Sites Act, landowners were encouraged to grant land to the Church for education, with the proviso that, if the usage changed, possession would revert to their descendants... The Canterbury Diocese sold St Philip’s school near Maidstone in 1995...

The Fraser brothers tracked down the 18 living descendants and bought up the interests in the case from a number of them. A public notice put up before the school was due to close, in accordance with the law, had alerted the brothers to the potential cash windfall.

Now their investment has been rewarded, as the diocese has been told it acted illegally and must recover and redistribute the cash to the descendants of Jane Mercer and Lewis Wigan. As the land recently sold on for £400,000, there could now be further legal argument as to how much the beneficiaries must receive.

Mercer and Wigan were the two people who, in 1866, gave the land to the Church “for the education of children and adults of the labouring, manufacturing and other poorer classes in the Ecclesiastical District of St Philip Maidstone”.

The partners have a further backlog of ... cases of church schools, all built on land donated to the Church for the purpose of education, but subsequently closed down. In each case the Church has refused to return the land to the descendants of the original donor and in many of the cases, the schools have already been sold and redeveloped. There could be hundreds of such cases around the country.

The School Sites Act was passed to encourage grants of land under one acre for specified educational purposes. The law stipulates that such grants contain an automatic reversion to the grantor or his successors should the school close. The Act was strengthened by the Reverter of Sites Act 1987...

The ruling affects any school closed since 1987 and built on land donated originally under the 1841 School Sites Act.

The High Court initially backed the right of the Frasers to mount a claim on the basis that when the school closed the land should revert to the beneficiaries of the original donors. The Court of Appeal reversed that ruling but the Law Lords have now reinstated it.

Radio Kent
28 October 2005
Transcript of Interview with Dominic King,

DK      “A legal victory in the House of Lords centering on a Maidstone Church School, which could cost the Church of England millions of pounds. Genealogists Simon and Nathan Fraser defeated Canterbury Diocesan Board over the issue of a site attached to St Philip’s Primary School, which closed in 1995.  The land had been donated many years ago by local people on condition it was used as a school, but the church sold off the land and now the Fraser’s have successfully argued the ownership of the site should revert back to the beneficiaries.  Charles Fraser is from the same family firm of genealogists and he joins me on the line now. Mr Fraser, can you tell me more about this case?”

CSF    “Well, as you started in the report, the land was given away in the late 1880’s under the School Sites Act of 1841 for the purpose of a school.  One of the conditions attached to it as you said was that on the school closing and ceasing to be used as a school the land goes back to the original beneficiaries, or the donors, or that person’s beneficiaries.  Parliament enacted the 1987 Reverter of Sites Act which helped clarify exactly who those beneficiaries were, and what the conditions were attached to that, and limiting the time for the claims to be made, and this House of Lords decision has helped clarify again exactly who the beneficiaries are, and the fact that the proceeds of sale, if the land has been sold, should go to the rightful beneficiaries.”

DK      “Why did you decide to take this to the House of Lords?”

CSF    “Well, firstly we identified beneficiaries who were entitled as I said under the legislation.  We believe many of those beneficiaries are poor and did not particularly to fund expensive litigation, and so we stood in their shoes to help clarify this area of law because it was open to some doubt, although we would say not a great amount of doubt, to stand up effectively for the rights of all the beneficiaries on all other school site matters in order to try and help them be able to claim their rightful entitlement.”

DK      “The Fraser’s yourselves have bought out the interests haven’t you of a number of the beneficiaries that you traced?”

CSF    “On this particular matter yes.  As I said the majority of the beneficiaries did not particularly want to have to fund what looked like it might be expensive litigation against a very powerful body, a very rich body, and so for that reason they wanted to have some money rather than nothing, and were happy to sell their interests to Simon and Nathan.”

DK      “So now this money comes to Simon and Nathan, what are they going to do with this money?”

CSF    “Well, part of that will repay all the costs that they have incurred in tracing beneficiaries who were rightfully entitled to the proceeds, the expense that they have incurred in buying their interest, legal costs which no doubt won’t be recoverable.  It will also pay for other court cases, and indeed the previous court case which went to the Court of Appeal again against Canterbury Diocesan Board of Finance.  There Simon and Nathan lost on a technicality which has now been overruled by he House of Lords.”

LOCAL PRESS:

Western Daily Press
28 November 2005
Pensioner Brian Harris .. says that, as the last surviving relative of John Crewe who donated land more than a century ago, he should have inherited Dunalley School in Cheltenham when it was closed and sold for housing.

But when the local education authority shut the Victorian primary in 1998 to build a new school on a neighbouring site, trustees set up a charity which pocketed £126,000 from the sale of the original buildings to invest in education....

At least half a dozen families in the region already look set to follow his lead after a recent House of Lords ruling in favour of descendents of benefactors who gave away land for a school in Maidstone.

And with authorities across the West preparing to close small village schools, families are being urged to check the small print in case they, rather than education chiefs, are entitled to the cash windfall.

"It's quite involved, but basically the land was donated for the school and it should have reverted to the family when it closed, " said Mr Harris, who lives in Llangarron, near Ross-on-Wye.

"The law said when it stopped being a school it should have passed back to the family. I believe we are the owners." Although Mr Harris knew his late wife's great-great-great-grandfather had given land to charity to build a Cheltenham school in 1858, the widower believed talk of a legacy coming their way was nothing more than a family story.

Then a well-known family firm of Fraser & Fraser which specialises in inheritance issues contacted him to say he could reclaim the land where Westbury Homes has built 13 apartments and four three-bedroom townhouses.

Fraser and Fraser has been to the House of Lords to establish that land handed over under the School Sites Act of 1841 should be handed back to the original owner when schools close down...

Mr Harris... after 20 years caring for his disabled late wife, says he has no plans to adopt an extravagant lifestyle.

"Knowing the speed at which solicitors and bureaucracy move, I think this might well see me out, " he said.

"But it's worth chasing for my son. Rather than sell it at that price, we would have built a house on the site where he could have lived himself.".. You can see this story online by clicking here (please note the article on the Western Daily Press website incorrectly describes Fraser & Fraser as lawyers: we are not - we are a firm of Genealogists and Probate Researchers).

The Ross Gazette
24 November 2005
This article is not yet available online.

Gloucestershire Echo
15 November 2005
Brian Harris says the money from the sale of a Cheltenham school should be his. The county council sold the land in Dunalley Street to property developers for £126,000.

The former Dunalley Street primary school once belonged to Brian's great great great grandfather.

The site was sold in 2000 and the land turned into flats....

Mr Harris and his son Kenneth were told they had a claim by London-based probate researchers Fraser & Fraser.

The School Sites Act 1841 states that if land is given to a charitable trust to open a school, the land passes back to the original owner as soon as the school closes.

Developers Westbury Homes took over the land when it took over Prowting Homes in 2002. The company started building 10 two-bedroom apartments, three one-bedroom apartments and four three-bedroom town houses on the site in March 2002. The luxury apartments, known as The Academy, sold at up to £250,000 each...

He said: "At first I thought it was a scam because you hear about these kind of things all the time.

"But they didn't ask for money up front and I looked into it and found it to be genuine. There are lots of claims like this around the country and it's all because of this law."...

Gloucestershire County Council, which owned the school building itself, agreed to sell the site on behalf of the Dunalley School trustees in 2000.

The trustees wanted to move the school to a better building in Pittville. They moved out in 1998.

The original asking price was £200,000 but the site was sold for just £126,000 in November 2000. The money was to be split between the school trustees and the county council, to spend on education in St Paul's.

But the trustees, who set up a charity in order to sell the school, still have the money.

Last month, in the first case of its kind in the country, the House of Lords ruled that a family were entitled to a share of the profits from the sale of a CofE school built on land that belonged to their ancestors.

Kenneth, who lives in Newnham in the Forest of Dean, said the case had set a precedent for claims like his.

He said: "There are 17 or 18 claims like this in England and it means that we should own the land. As far as I know we're the only members of the family left."

Mr Harris, 67, who lives in Llangarron, in Ross-on-Wye, has for the past 20 years been a carer for his wife after she was in a car crash. He is now retired following her death last Christmas.

He said: "The land was made available by my ancestor John Crewe in 1858 for educational purposes and a charity called the British and Foreign Society set up the school.

"But the law says that once it stopped being a school it should have passed to the family.

"I believe we're the owners of the land. But we don't know how much we will get and we don't know how much of it will be shared out. To get a true value would take an awful lot of digging around on the legal side of things."...

You can read the story online by clicking here

Sheerness Times Guardian
3 November 2005
This article is not yet online