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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> J Alston & Sons Ltd v Bocm Pauls Ltd [2008] EWHC 3310 (Ch) (28 November 2008) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2008/3310.html Cite as: [2008] EWHC 3310 (Ch), [2009] 1 EGLR 93 |
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Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a deputy Judge of the Division)
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J Alston & Sons Limited |
Claimant |
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- and - |
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BOCM Pauls Limited |
Defendant |
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Mr John McGhee QC and Mr Timothy Harry (instructed by Birketts LLP ) for the Defendant
Hearing dates: 3rd, 4th 5th, 6th and 28h November 2008
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Crown Copyright ©
Her Honour Judge Hazel Marshall QC :
The land
The facts
1966 1973
1974-1977
"I acknowledge that I am a mere licensee, paying no rent, of the land at Right Up Lane, Silfield, Wymondham (as approximately defined in Green outline on the attached map) and that I must give up possession of all or any part of the land to Barkers & Lee Smith (Norfolk) Limited without notice whenever required so to do by them."
1977
1977-1989
1989 1994
1994-5
1996 - 8
1999 - 2006
The legislation
"(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."
Reference must then be made to Part I of Schedule 1 of the Act to determine when the relevant right of action accrued. The main material provisions are:
"1. Where the person bringing an action to recover land or some person through whom he claims has been in possession of the land, and has, whilst entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance
"8 (1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as "adverse possession")
"(2) Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall not longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession
"(4) For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land.
"This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case."
The common ground
The issues
i) Were Alstons/Mr Alston in factual possession of the orange land for the relevant 12 year period?
ii) If so, did he/they also have the necessary "intention to possess" sufficient to render their possession capable of being "adverse possession" as recognised by the law for this purpose?
iii) If so, was their possession nonetheless by permission of Pauls, so as to prevent Alstons' being "a person in whose favour time could run"?
"Adverse" possession - general authority
"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi").
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. . Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR in Littledale v Liverpool College as "the intention of excluding the owner as well as other people" what is really meant is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world a large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow"
"36. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.
37. It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. "
"There will be a "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word"
He then goes on to emphasise that "possession" is single and exclusive and, apart from the situation of joint possession, can therefore be had only by one person at a time (Paragraph 38).
"The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong."
Considering this from the standpoint of the intention of the alleged adverse possessor he said:
"The highest it can be put is that if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, this may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself, I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases." (Paragraph 45.)
"Once it is accepted that the necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and in the meantime being in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime"
The first issue factual possession
The second issue intention to possess
"an erroneous belief by the occupier that he has the consent of the owner does not mean that he is not in possession of the property":
Wretham v Ross 2005 EWHC
1259, para 41, a decision of David Richards J. That case concerned several disputed small parcels of land, but Parcel 2 is the relevant one. It was a brick stable outbuilding between land owned by the alleged adverse possessor and the adjoining owner. It had been occupied for storage, sufficiently to amount to factual possession, by an agreement with the land owner, until 1968, when the land-owner died. Thereafter, it was found, the occupier believed that that agreement continued and that his occupation was thus by permission, but this was wrong. It was held that the erroneous belief that he had permission did not negative the necessary "intention to possess", and this was so notwithstanding a request made by the occupier in 1974 for permission to store other different items in the store. At Paragraph 44 David Richards J said
"In my judgment, the facts of Captain Warwick's possession of the stable demonstrated an intention on his part to possess it to the exclusion of all other persons, including the owner, unless and until asked to give up possession. His possession from Mr Bedward's death in 1968 was adverse because he did not have the owner's consent. It follows that his erroneous belief that the agreement with Mr Bedward continued did not prevent him, or through him the appellant, acquiring a possessory title ."
"a person who is in factual possession and who intends to remain in possession (and to use that possession for his own benefit) so long as the true owner continues to permit him to do so does not have the necessary intention to possess" for the purpose of starting a period of limitation running in his favour." Paragraph 40.
His decision that there was insufficient intention to possess was based on the finding that the daughter and her husband were themselves in possession of the property as the result of some arrangement which the landowner had with their mother (Paragraph 41), and one which they never intended to repudiate. He held, therefore, that they were not in a position to say that they "ever intended to dispossess the paper owner".
"The highest it can be put is that if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, this may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself, I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases." (Paragraph 45.)
This paragraph is contrasting "possessing the land in the ordinary sense" with "only an intention to occupy it until needed by the paper owner" (emphasis added). However, the fact that Lord Browne Wilkinson considers this a highly unlikely possibility where (as here) the paper owner has been de facto excluded from physical use of the land, and that he also that refers to knowledge of some "special purpose" (emphasis added) of the paper owner, to my mind suggests that he is thinking more in terms of consistent physical uses for the premises, than full scale occupation of the premises by someone who nonetheless recognises that if the paper title owner wanted the premises and sought his removal, he would (have to) leave. The distinction can hardly turn on so refined a point as whether the adverse possessor's frame of mind is that he will go, rather than that he will have to go.
Was Alston's possession by implied permission of Pauls?
"whether a reasonable person would have appreciated that the user was with the permission of the landowner or only with his acquiescence (emphasis added) In practice, if permission is to be shown, there will have been some overt act by the landowner, or demonstrate circumstances from which the inference can be drawn, although it may well be that the users were unaware of these matters" (Paragraph 43).
In my judgment, although it may not be possible to point to some overt act by the estate from which permission can be inferred, the matters relied on by Mr Morshead certainly constitute demonstrable circumstances from with the inference can be made. It is plain that from July 1985 the battle lines were drawn and that the estate, however, reluctantly, accepted the status quo. Further, it is clear that a reasonable person, (who must be assumed to have knowledge of the material facts) would have appreciated that Mr Algy Taylor's occupation was with the permission of the estate"
"it is not enough that the demonstrable circumstances are consistent with there having been permission. They must be probative of it"
The context of this emphasis also shows that he made this distinction in order to recognise that
"there is a real difference between permission on the one hand and mere non-objection or acquiescence on the other" (Paragraph 33)
I observe that this distinction was also firmly in the mind of Smith J when she originally formulated her test, as quoted initially above. In Hicks Briggs J found that the facts and circumstances did not justify a finding of an implied permission.
Conclusion