Archive for the 'Adverse possession' Category

Adverse Possession of a Highway II

Published
by
Francis Davey
on 12/03/2010
in Adverse possession and Uncategorized
. 0 Comments

Last year we reported the decision R (Smith) v Land Registry [2009] EWHC 328 (Admin) in which the High Court held (amongst other things) that it was impossible to acquire land by adverse possession if that land was subject to a public highway. At the time I expressed my concern about the soundness of that conclusion and so it is rather pleasing to find that on appeal in R (Smith) v Land Registry [2010] EWCA Civ 200, the Court Appeal agree with me.

To recap: the claimant lives in a caravan on land to the North of road which is a part of the public highway, even though it is not itself metaled. He claims that, by adverse possession, he is entitled to have his title to the land registered.

My view was that this was bound to fail because: (i) a highway cannot be extinguished by adverse possession (the “once a highway, always a highway” point); and (ii) section 263 of the Highways Act 1980 vests the surface of any highway maintainable at public expense (as this one was) in the local authority. The same analysis was applied by Elias LJ and Mummery LJ in the Court of Appeal. Orthodoxy, in my view anyway, is restored.

I had also doubted whether a statement by Mummery LJ in the earlier case of London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 that property could not be acquired by adverse possession over land subject to a public right of way could be correct. Mummery LJ helpfully clear this up:

In the court below, counsel for the Land Registry cited a passage from London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 in which, without any display of law, I said-

“As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

In that case the court had not had the benefit of clear legal submissions on the point — in particular the appellant was a litigant in person —. I think that “without any display of law” is a very neat and gracious way of the judge to put it.

My last post on this subject generated a lot of feedback – ranging from those who equated adverse possession with theft, to those who felt the court ought to have made the doctrine more expansive. I should make it clear that I am not unsympathetic to Mr Smith’s plight. Successive governments have passed laws making it increasingly difficult for people, especially Roma, to exist in England and Wales lawfully, without providing them with any alternatives. That, on any analysis, seems irrational (since the alternative may be to house them using public funds which as readers know is not in generous supply) and unfair.

What seems to be the problem here is s.263 of the Housing Act 1980. Earlier acts, up to section 29 of the Local Government Act 1929, vested not the whole highway but the “road” in the local authority. While “road” did include the footway beside the road, it did not include roadside wastes such as Mr Smith inhabits (Curtis v Kesteven County Council (1890) 45 Ch D 504) and it might be useful — for legal certainty if nothing else — if that were still the situation. For some reason the drafters of the 1980 Act decided to extend the vesting to the whole of the highway beyond merely the road.

The court did not consider the “illegality” argument which had been put forward by the Council at first instance, namely that because Mr Smith’s occupation of his property was illegal, he could not thereby gain adverse possession of it.

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Adverse possession of the river bed II

Published
by
Francis Davey
on 04/02/2010
in Adverse possession and Uncategorized
. 16 Comments

Port of London Authority v Ashmore [2010] EWCA Civ 30 is a really odd decision by the Court of Appeal to the extent I had to read it through carefully twice to be sure I understood its effect. I am still not sure that I do.

You may remember that we reported on Mr Ashmore’s attempts to resists the Port of London Authority’s attempts to register their ownership of the bed of the River Thames on the ground that he had acquired title to it (well a part of it) by adverse possession where the judge at first instance found that he had established factual possession and an intention to possess.

Unfortunately that decision was taken by the judge the hearing of a preliminary issue. The order for a trial of a preliminary issue was made by consent. The issue being:

Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:

(a) the title to the sea or river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

An agreed statement of assumed facts for the preliminary issue only was agreed and submitted to the judge.

Here things start to get odd. At the trial of the preliminary issue the Port of London conceded that title to the bed of a tidal river can (in principle at least) be acquired by adverse possession. That would seem, almost, to be a concession that the preliminary issue should be found in Mr Ashmore’s favour (indeed it would cease to be an issue). While it might be possible to find some very narrow difference between the preliminary issue as stated and the authority’s concession, they do not appear to have taken that position. As far as I can tell (and I am happy to be corrected) the authority agreed with the proposition to be tried, so the preliminary hearing would seem to be pointless.

Not to be deterred by this, the parties argued whether Mr Ashmore had in fact (based on the agreed assumed facts) established both factual possession and an intention to possess. The points taken are dealt with in my earlier post. Having found for Mr Ashmore on this issue, the judge was bound to answer the preliminary question in the affirmative. If, on the assumed facts, Mr Ashmore had established adverse possession, then it was clearly possible for someone to do that in principle because the judge found that someone had. The judge’s order included the following statement:

1. It is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to the river bed or the foreshore for the footprint of that vessel where:

(a) the title to the river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

This isn’t quite the same wording as that used in the original order since it omits the phrase “or other area of tidal water”. But, strictly speaking, the judge’s narrower statement implies the more general one: if A is possible then surely one of A or B is possible.

The Port of London Authority decided to appeal this decision. Why they should do so given that they appear to accept the point in issue I do not know. They were given permission. At the hearing, counsel for the Port of London Authority explained that the authority conceded that there could be circumstances in which the owner of a vessel moored on a tidal river might acquire title by adverse possession to a part of the river bed or foreshore. What he wanted the Court of Appeal to do was to indicate in its judgment what circumstances those might be.

He suggested the following:

(1) An owner of a vessel that is moored on or over the bed of tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off at Mean High Water if released from its moorings.

(2) An owner of a vessel that is moored on or over the bed of non-tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off if released from its moorings where the waters were at their average depth during the preceding calendar year.

(3) The principles set out above do not prevent the owner of the vessel from showing by other acts that he was in possession of the land upon or over which the vessel was moored or which included such land.

Unsurprisingly the court refused to make a judgment in those terms. First because it did not think it appropriate to set down an arbitrary test for the acquiring of adverse possession to the river bed and second because principles (1) and (2) could not be applied to the case before it since the agreed statement of assumed facts did not give sufficient information to decide whether they did or did not apply.

For myself I would have refused the appeal on the basis that the order made by the judge on a preliminary issue had been conceded by the appellant. End of story.

Perhaps because of the peculiar nature of the case before it, the court decided it needed to do some peculiar reasoning as well.  The court discerned in the trial judge’s decision a qualification to the declaration he made, namely that it was not intended by the judge to be made in general terms, but was confined to the agreed statement of assumed facts. The court appears to have thought it should not have been made in the general terms it was.

With the greatest respect to the Court of Appeal, who must have struggled with the peculiar way the case was presented before them, that must be a nonsense. If on specific facts a judge finds that X is the case, then it must be true as a completely general proposition that it is possible for X to be the case. The judge’s decision cannot be faulted for its generality which follows inevitably for his finding on the facts before him and the question he was asked to resolve.

The court decided that there was no useful purpose in deciding whether the judge’s decision on the facts before him was right. The court also felt that it could not, in allowing the appeal, qualify the order that the judge made by confining it to the agreed statement of assumed facts. There was nothing for it but to set aside that part (paragraph 1) of the judge’s order. Unfortunately there is no report of the rest of the order, so it is impossible for us to see what state the case is left in. Very nearly back to square one by the sounds of it.

Can anyone throw any light on how this muddle came about, or why the Court of Appeal felt compelled to make the very odd decision that they did?

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It's a confused world out there…

Published
by
NL
on 04/01/2010
in ASB, Adverse possession, Allocation, Disrepair, Housing law - All, Leasehold and shared ownership, Nuisance, Possession, Tolerated trespasser, Trusts and Estoppel, Various (non-housing), assured-tenancy and secure-tenancy
. 11 Comments

And for the new year, it seems an opportune moment to delve into the Nearly Legal search logs in a vaguely quixotic attempt to provide answers to some of the questions that brought people here. Alternatively, where this is not possible, we can stare in mute bewilderment at what was behind the question…

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ‘52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

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Adverse possession of the river bed

Published
by
Francis Davey
on 14/05/2009
in Adverse possession, FLW case note and Housing law - All
. 3 Comments

In Port of London Authority v Ashmore [2009] EWHC 954 (Ch) the Defendant had, since 1983, tethered his sailing barge to Albion Wharf on the Thames close by Battersea Bridge. The Authority wished to register title to the bed of the river Thames but Mr Ashmore opposed this, claiming that, since his barge rested on the river bed twice each day (with the falling of the tide) he had acquired title to it by adverse possession.

The Authority raised two objections to Mr Ashmore’s claim.

First, it was argued that Mr Ashmore did not have and had not had exclusive possession of the river bed because he had “no continuous, unbroken possession of the bed.” His barge was of course rising and falling. Not only did it sit on the river bed only at low tide, it also failed to occupy any defined area of space (for what one might call a “floating freehold”).

The judge disagreed. He relied on a useful encapsulation of the law by Slade J in Powell v. McFarlane (1977) 38 P & CR 452, in particular the ruling that what constitutes a sufficient degree of possession depends on “the nature of the land and the manner in which land of that nature is commonly used or enjoyed”.

The famous case of Red House Farms (Thorndon) Ltd v. Catchpole [1977] 2 EGLR 125 makes the point. The land in question was marshland. Adverse possession was successfully claimed on the basis of using the land for shooting. Clearly in that case there was no need for continuous occupation of any kind.

The House of Lords approved Powell in J A Pye (Oxford) Ltd v. Graham[2003] 1 AC 419 in which Lord Hutton approached the question by asking “what an occupying owner of the disputed land might have done over and above what was done”. The judge found that a useful test and thought that, short of building a structure on the river bed, Mr Ashmore could have done nothing more. Given that a squatter does not have to build on land to demonstrate adverse possession he felt that Mr Ashmore had done enough.

The Authority’s second objection was that Mr Ashmore had not demonstrated sufficient intention to possess the river bed, no animus possidendi as we used to say. The Authority’s argument was that what Mr Ashmore was doing could equally well have been compatible with the exercise of some other right that was less than possession, for example:

  • an exercise of the public right of navigation
  • an exercise of riparian rights by a riparian owner
  • a licence, which might or might not be coupled with a lease of the moorings themselves
  • an easement for the benefit of the land on the shore or bank

(for those who aren’t familiar with this slightly arcane area of law, you can translate “riparian” by “river bank”).

Well that much is true if the test were what a casual passer-by might think, but the judge found that the test was what the

occupier would say to someone with the knowledge of the paper owner “if he took the trouble to be aware of what was happening to his land”

On which basis the judge found that Mr Ashmore had the requisite intention to possess.

What is interesting to me is that counsel for the Authority conceded that the existence of a public right of navigation did not prevent Mr Ashmore’s asquiring the river bed by adverse possession. As the judge commented, Mr Ashmore’s victory might be pyrrhic because it would neither give him a right to obstruct the public right of navigation nor any right of access to the river bank.

That is, in my view, exactly right and contrasts with the wholly mistaken view taken by the court in R (Smith) v Land Registry (Peterborough) [2009] EWHC 328 (Admin).

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Adverse possession of a highway

Published
by
Francis Davey
on 13/05/2009
in Adverse possession, FLW case note and Housing law - All
. 29 Comments

Can you acquire title to land over which a highway runs? There seems to be no reason in principle why not but R (Smith) v Land Registry (Peterborough) [2009] EWHC 328 (Admin) — wrongly in my view — suggests otherwise.

The Claimant had occupied land with his caravan and its associated structures for in excess of 12 years. He applied to the Land Registry to register his title to the land by adverse possession. The land itself formed a part of a public highway open to all traffic. Accordingly the assistant land registrar refused the application for two reasons: (1) “title cannot be acquired to highway by adverse possession” and (2) the Claimant had not shown a sufficient degree of exclusive physical control over the land in question to found a claim for adverse possession.

The Claimant applied for judicial review.

At first glance the case seems quite straightforward. The Claimant accepted conclusion (2) which would (surely?) mean his claim would be bound to fail. Nevertheless the court thought it was useful (given that the Claimant intended to make another application to the registrar) to decide whether conclusion (1) was right.

Even at second glance the case seems relatively straightforward. As any student of land law knows, adverse possession only affects corporeal not incorporeal hereditaments (other than tithes and rentcharges, although a typical student might be forgiven for ignoring them). For example, if a squatter takes over my neighbour’s property, their adverse possession won’t affect any easements my property has over theirs such as a rights of light or way. See s.38(1) of the Limitation Act 1980.

What is more, no amount of obstruction to a highway, for however long will destroy the highway (Harvey v Truro Rural District Council [1903] 2 Ch 638).  As the saying goes “once a highway always a highway”.

This is relevant because, unfortunately for Mr Smith, s.236 of the Highways Act 1980 provides that every highway maintainable at public expense (as was the one in question) vests in the highway authority “together with the materials and scrapings of it“.

In other words so long as the highway remained a highway the local highway authority (Cambridgeshire County Council) owned and continued to own the top surface of the highway and so Mr Smith’s attempt to acquire ownership of the same was doomed.

Unfortunately that relatively simple approach does not appear to have been enough for the court. Instead the court proceeded to decide that: (1) it is impossible to obtain title to a highway by adverse possession and possibly (2) possession which amounts to a criminal offence cannot found a claim for adverse possession.

The assistant land registrar had based his conclusion on a statement by Lord Justice Mummery in London Borough of Bromley v Morritt. There are two cases of that name, which were heard as conjoined appeals. Only the first was reported (as London Borough of Bromley v Morritt (No. 1) [2000] E.H.L.R. 24), it is the second (case number CCRTF 1998/0956/2) which relates to adverse possession of a highway.

The judge said:

As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.

One wonders why not. For example it is quite possible for the land subject to the highway to be held by a private individual who may then exercise rights (such as grazing of livestock) over the highway provided that exercise of those rights does not interfere with the right of the public to pass over the highway.

Possession, for the purposes of adverse possession, need only be possession that is consistent with the nature of the land in question. Provided I exercise the rights of the land owner, minimal though they might be, I should be able to establish possession of land subject to a public right of way.

Morritt is an unfortunate case because the Claimant was a litigant in person. There does not appear to have been any proper argument or consideration of the adverse possession claim, so that Mummery LJ’s conclusion must be treated with caution. Furthermore it is, at least technically, made by the way and not properly authoritative.

Recognising that Morritt was not binding authority, the trial judge relied on the case of Harvey that I referred to above. He said:

Joyce J concluded that this was an encroachment and said in relation to it:

“The possession of a squatter on the highway since 1886 cannot bar the public right.”

In other words, Joyce J held that adverse possession could not be asserted if (as is alleged here) the effect would be to exclude the public from part of a highway, and that was so even if the part concerned had not been used, as such, for a number of years.

Nonsense. In Harvey the Claimant had applied for a declaration that the land in question (part of the roadside waste) was not a part of the highway. Adverse possession was never claimed. In fact it was quite possible that the land formed a part of the Claimant’s estate. Joyce J did not think that had been proved to his satisfaction, but he did not determine the question because the parties wished him to consider the right of the public over the roadside waste.

Not content with misconstruing Harvey the judge went on to consider what he called the “illegality” point. The Defendant and the Council had argued that there was a principle of public policy which prevents a party acquiring a legal right by illegal activity. Mr Smith’s taking possession of a part of the highway with his caravan etc would amount to an obstruction of part of the highway contrart to s.137 of the Highways Act 1980. Public policy would intervene to prevent him from claiming adverse possession on that ground.

By an extremely convoluted route, the judge found support for the existence of such a proposition in the House of Lords decision in Bakewell Management Limited v Brandwood [2004] 2 AC 519. That case was about rights acquired by prescription not by adverse possession. They are quite different legal principles. As Edward Burn my old land lecturer used to say: prescription is based on use as of right, but adverse possession is use as of wrong.

The decision in Bakewell concerned whether the Defendants could acquire a prescriptive right of way over a common for their vehicles. They had been driving over the common to their properties for at least 20 years but that action was criminal in nature because it was done without the consent of the owner of the commons. The Lords found that, even so, they could acquire a prescriptive right under the doctrine of lost modern grant which presumed that use as of right for 20 years implied the existence of a grant from the land owner (now unfortunately lost). If they owners of the common had granted a right to the Defendants their use would not have been criminal.

At first sight Bakewell looks rather unpromising as a case to found a general principle of public policy that a party cannot acquire a legal right by illegal activity because that is exactly what the Defendants were found to have done. Nevertheless the trial judge appeared to be able to so find on the basis that Bakewell was an exception to a general principle. In Mr Smith’s case the local authority could not have granted him a right to obstruct the highway and so he fell outside the Bakewell exception and could not succeed. Of course that is not how the decision in Bakewell operated and in any event referred to prescription not adverse possession which is based on wrong not right.

Worse was to come. The judge relied on Glamorgan County Council v Carter [1963] 1 WLR 1 (which has absolutely no relevance whatsoever but that should be no surprise to readers by now) on the basis that it was approved by Lord Scott in Bakewell. He said (my apologies for the length):

In his opinion in B akewell , Lord Scott approved Glamorgan County Council v Carter [1963] 1 WLR 1 in these terms:

“ Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947 . The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12 (5) ( of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purposes for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was a context in which Salmon LJ, at page five, made the statement cited by Dillon LJ, namely: “It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land.” Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. ”

In my judgment it is the principle stated in the Glamorgan County Council case and approved by Lord Scott in Bakewell (rather than the exception to it by which Bakewell was actually resolved) that applies in a case of this sort.

It is regrettable that the judge ended his citation of Lord Scott at that point for he continues:

But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ’s statement out of context and treat the principle he expressed as applicable to prescriptive use.

In my view the judge’s use of the authority was equally unconvincing.

I do not think I need to go on. In my view the judge was either badly mislead by counsel or did not properly understand the authorities that were put before him. That is very unfortunate as he appears to have stated a general principle which does not, on closer examination, stand up.

Readers have fellow blogger “J” to thank for this lengthy diatribe. I am about to blog about an elegant case involving the acquisition of tidal foreshore in the Thames by adverse possession but, before I was permitted to do so, I was told I had to report this case.

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Without Prejudice acknowledgment of title?

Published
by
NL
on 18/03/2009
in Adverse possession, FLW case note and Housing law - All
. 0 Comments

Ofulue v Bossert [2009] UKHL 16 was an adverse possession case – we commented on the Court of Appeal hearing here, and that post gives the background. There was an appeal to the House of Lords which was primarily concerned with the limitation period of adverse possession. This is a late and brief report because the issues involved were not housing law in particular, but broader ones of evidence, limitation and civil procedure.

There is only one possession related issue. The Court of Appeal had held that an admission of title in a defence to a possession claim was an admission of freehold, not of immediate right to possession and therefore not an acknowledgment of title for the purposes of the Limitation Act 1980 (of which more below). Lord Neuberger, without dissent from the others, found that was wrong. Firstly, the 1980 Act refers to title, not possession; and secondly, the acknowledgment was of right to possession, albeit subject to the tenant’s rights in law or in equity [para 75].

That disposed of, the evidence and limitation issues were as follows:

On appeal to the Lords, the appellants, the Ofulues, argued that:
i) a without prejudice letter from the respondent written during possession proceedings in January 1992 set the start of the twelve year period for adverse possession such that the appellant’s possession claim was commenced prior to the expiry of twelve years adverse possession.
ii) an acknowledgment of title in a defence to possession claim subsisted until the claim was struck out, some 6 years later.

This is important because of s.29(2) of the Limitation Act 1980:

(2) If the person in possession of the land . . . in question acknowledges the title of the person to whom the right of action has accrued -
(a) the right shall be treated as having accrued on and not before the date of the acknowledgement …

The answer to argument by their Lordships to point ii) was in essence short and sweet. S.29(2)(a) refers to the date of acknowledgment. That is the date of signing and perhaps service of such an acknowledgement, but no later. There is nothing in s.29 to suggest or allow a continuing acknowledgment as long as proceedings last.

This left the without prejudice letter of January 1992, which contained an offer to purchase the property.

On this, their Lordships were split, 4 to 1. The majority held that public policy on the use of without prejudice negotiations meant that the letter should not be available as evidence of an acknowledgment of title in the later (second) set of possession proceedings.

The dissenter, Lord Scott, did so on the basis that without prejudice protection extended only to discussions or admissions as to the ‘facts to be determined in the case’ [para 23] or an admission made purely in an attempt to achieve a settlement [para 25]. In this case, the appellants’ title had been admitted in the defence, so the further admission in the letter of January 1992 was neither a fact to be determined in the case, nor an admission made purely to achieve settlement – it was already an openly admitted fact. So the ‘rule’ in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 that the without prejudice rule covers any subsequent litigation based on the same facts does not apply.

The majority, with Lord Neuberger’s judgment as lead, upheld the public policy view that without prejudice discussions should not be opened in proceedings. Lord Hope, Lord Rodger and Lord Walker argued that the difficulty of separating agreed fact from offer of settlement was such that the prospect would inhibit open negotiations between parties.

Lord Neuberger holds that:
i) the admitted fact was art of the same sentence as an offer to settle in this instance and inseparable from it, so the without prejudice rule applied.
ii) An admission of title where whether the title was unencumbered or not was at issue could not be said to be remote from the issues to be decided.
iii) The distinction drawn by the appellants between an admission as a matter of fact and taking it as evidence of the truth of the admission (i.e between the offer being admissible as evidence that the respondents admitted the appellants title, not as evidence that the appellants were the owners) is, in practice, too subtle to apply. The distinction between and acknowledgement and an admission is too unclear to draw, at least with public policy in view.
iv) The public policy embodied in s.29 of the 1980 Act did not override the public policy interests of the without prejudice rule. There is no special exception.

Although their Lordships consider that there may yet be further exceptions to the rule developed beyond those in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436, this was not such a case.

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Adverse possession and estoppel

Published
by
Dave
on 18/12/2008
in Adverse possession, FLW case note, Housing law - All and Trusts and Estoppel
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In St Pancras & Humanist HA v Leonard  [2008] EWCA Civ 1442, the Court of Appeal held that, although Mr Leonard had possession of the relevant property (a garage), he nevertheless was estopped from claiming a right by adverse possession against the Claimant. The case is interesting largely because of the way the CA deployed estoppel to defeat the claim despite Mr Leonard having the relevant intention to possess.

In brief, the facts were that Mr Leonard (described variously as a “seasoned squatter” and “a coloniser – maybe a closet coloniser”) and colleagues occupied a couple of properties owned by LB Camden and which they were going to demolish in 1975. The properties had large (by London standards) gardens and the garage was located at the end of one of the gardens. It appears that Mr Leonard put a lock on the garage at this time, thus establishing the relevant intention and factual possession. Other residents did use the garage to store their stuff but this was held to be either with his permission or otherwise insufficient to destroy the requisite intention. The properties were bought from Camden by a co-op in 1985, organised by residents, squatters and others, and subsequently ended up in the hands of the Claimant in 1999, which wanted to demolish the garage. Mr Leonard claimed an interest by adverse possession which would have amounted to an overriding interest (under the pre-2002 Act) against the Claimant. The problem for Mr Leonard was that minutes of the Co-op board, on which he sat, disclosed that, as the Recorder had put it, by his silence and going along with the proposals encouraged the co-op “to enter into negotiations with Camden on the basis that this garage would become part of the leasehold property that was being obtained in 1995, with the obvious consequence that it would be available communally.” This was the basis for the proprietary estoppel that was relied on by the Claimant. As such, there was a clear representation and detriment.

Mr Leonard’s argument was that he didn’t know the law on adverse possession and therefore was unaware of his possessory right in law to the garage at that time. The CA found that, although that was a correct statement of principle, it was irrelevant in this case because, on the facts, he did believe that he had exclusive possession of the garage, believed that right would continue after the co-op acquired the lease, and, despite those beliefs, encouraged the co-op to enter into negotiations for its purchase with Camden. Indeed, the Recorder had found that it was “quite extraordinary that any right-thinking person, believing that they had a right of the kind which Mr Leonard now says he believed he had, even if only to possession, would not have mentioned that. Those attending the meeting would have formed the same view and would have proceeded in the general belief that they were negotiating for a lease that would give them actual control and possession of the garage, according to the interest being created.” All of this seems quite sensible, but I’m left feeling a little uneasy by the decision because, if he didn’t know that he had an enforceable right, how could he sensibly encourage the co-op either way but maybe I’m just a little old-fashioned in a kind of Willmott v Barber way.

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The Crown as squatter

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on 20/02/2008
in Adverse possession, FLW case note and Housing law - All
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A more than a little unusual Court of Appeal judgment on adverse possession has just been handed down. Roberts v Crown Estate Commissioners [2008] EWCA Civ 98. I won’t go into the details – it involved a challenge to Crown possession of an area of foreshore and river bed of the Severn by the purchaser of an ancient manorial title. The result – the Crown can gain property by adverse possession. ‘The same law of limitation applies to both Crown and citizen’.

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Adverse possession, Art 1 and acknowledgements

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on 02/02/2008
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Ofulue & Anor v Bossert [2008] EWCA Civ 7 deals with an adverse possession case prior to the Land Registration Act 2002.

Some notes:

The (then) law on adverse possession does not breach Art.1 Protocol 1, Pye v United Kingdom [2007] ECHR 44302/02 applied. In order not to fall under the Pye margin of appreciation, a case’s results would have to be so anomalous as to render the legislation unacceptable.

Having made a defence to possession proceedings that the occupant is a tenant does not prevent the occupant from having the requisite intention to possess. A person believing himself to be a tenant may still be in adverse possession. The necessary intention is an intention to possess, not necessarily an intention to exclude the paper owner,  Lodge v Wakefield MCC [1995] 2 EGLR 124.

A defence that the occupant is a tenant does not constitute an acknowledgement of title for the purposes of s.29 Limitation Act 1980 in that, although there may be an acceptance of title, there is not an acknowledgement that the title holder has a right to possession. Such a defence does not ‘re-start’ the 12 year period.

Also worth reading for an interesting discussion on the admissibility of  ‘without prejudice’ correspondence at the end of the judgment.

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