It wouldn’t be Christmas without a post on adverse possession so here is Smart v London Borough of Lambeth [2013] EWCA Civ 1375……..(*struggles to find Christmas link*).

An oddity in this case is that Mr Smart, who was claiming adverse possession against Lambeth, had previously made a right to buy (RTB) application to them in November 1993 on the basis that he was a secure tenant: this application was subsequently discontinued.

Unsurprisingly, his RTB application meant that his claim for adverse possession could only succeed if he were able to establish 12 years adverse possession prior to his application.

The case provides a useful summary of the case law on adverse possession and implied consent.  As will be seen from the facts, this is a case where, I think, it would have been very difficult for the Court of Appeal to have done anything other than dismiss the appeal because the facts were very much against Mr Smart.

Mr Smart’s predecessors were squatters who moved into the property and surrounding properties in the 1970s at a time when they were in a poor condition.  Lambeth took a rather sensible approach to the issue (this was long before the days of  s.144 LASPA 2012) and instead of taking possession proceedings against them started negotiations with the squatters to allow them to remain in occupation whilst trying to address the poor condition of the properties. There were negotiations between the parties in 1980 and a scheme was subsequently set up to try to achieve that aim.

The scheme operated by Lambeth granting a licence of the properties to Solon Housing Association (‘Solon’) who, in turn, entered into an agreement with a co-operative, formed by the squatters, for temporary accommodation to be provided to its members.  Members of the co-operative who occupied the properties paid “rent”. The scheme also provided that Solon would obtain small grants (under Housing Act 1974), which were passed onto the co-operative, to carry out repairs (it was necessary for Solon to be involved in the arrangement because the grants were not directly available to Lambeth).

The first licence was granted to Solon by Lambeth sometime on or after September 1981 (subsequent licences were granted by Lambeth after the first licence expired). In December 1981, Solon entered into a written licence agreement with the cooperative to enable it to manage and allocate the properties on behalf of Solon.  The agreement required the cooperative to grant a right of occupation in a specified form.

Mr Smart became the sole occupier of the property in around 1984 and did not, at any point, sign the specified form. Whilst in occupation, Mr Smart carried out works to the property, which were partly funded by the grant money, was chased for rent by the cooperative and, later, became active in the day to day running of the co-operative.

It was argued by Mr Smart that, in the absence of an agreement in the specified form, he and his predecessors did not have consent from Lambeth to occupy the property and, therefore, could claim adverse possession against them. The Judge at trial found that during the negotiations there had been implied consent from Lambeth for the squatters to occupy the property and that the implementation of the scheme amounted to express or implied consent for the occupation to continue: he rejected the argument that the absence of an agreement in the specified form between the cooperative/Solon and Mr Smart/Mr Smart’s predecessors had broken the chain of permission.

On appeal, it was conceded that the Judge was correct in his approach to implied consent during the negotiations but, it was argued, he was wrong in his approach to the subsequent period.

The appeal was dismissed.  It was held that it was wrong to assume that the only way Lambeth could express its consent to the occupation of the property was by the mechanism provided in the agreement between the cooperative and Solon (i.e. in the specified form):

“The first Solon licence invested Solon with the right to grant permission on behalf of Lambeth, but did not exclude Lambeth’s right to communicate its own permission to the occupiers.  The Judge expressly found that Lambeth was giving its consent to the scheme in a much more general sense. In that sense, Lambeth was consenting to, indeed encouraging the continued occupation by the current occupiers when the scheme came into effect….Once the scheme came into effect there could not have been the slightest doubt in the minds of any current occupiers of the property….that their continued occupation was with Lambeth’s consent.” [50]

Accordingly, the Judge was entitled to conclude that Mr Smart’s predecessors were occupying with consent up until 1984 when Mr Smart took up sole occupation which would defeat his claim for adverse possession as there was less than 12 years between that time and his RTB application.

That was enough to dispose of the appeal but the court considered that; in any event, the Judge was entitled to find that Mr Smart was in occupation with Lambeth’s consent after 1984 given that:

“there were abundant circumstances from which he, or indeed any reasonable person, would be able to conclude his occupation of the property was pursuant to the scheme” and “he knew that he was amongst the class of people intended to be permitted to occupy the premises.” [53].

 At trial, Lambeth had raised two alternative points which the Judge also found in their favour. Firstly, that Lambeth had parted with possession to Solon and that, therefore, any adverse possession did not affect its rights as reversioner under the licence and, secondly, that Mr Smart was estopped by convention from claiming adverse possession as the grant to repair the property was only available on the basis that it was let. The Court of Appeal didn’t think it was necessary to consider these points given that it had upheld the Judge’s findings and approach on implied/express consent.