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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Markfield Investments Ltd v Evans [2000] EWCA Civ 281 (9 November 2000)
Cite as: [2000] EG 127, [2001] 1 WLR 1321, [2001] WLR 1321, [2001] 2 All ER 238, (2001) 81 P & CR 33, [2000] EWCA Civ 281

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Case No: B2/2000/2353
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 9 November 2000

B e f o r e :
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr M Treneer (instructed by Hancock Caffin of Truro TR1 2EY) for the Apellants
Mr C Elliot (instructed by Follett Stock of Truro TR1 1QH) for the Respondent
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As Approved by the Court

1. This appeal raises a short point of law in connection with adverse possession. The appellants hold the paper title to the land in question; the respondent is in exclusive occupation of it. The appeal is brought against the order of Judge Samuels QC in the Truro County Court on 22 May 2000 made on the hearing of a preliminary issue, ruling "that the [respondent's] claim to have acquired adverse possession of the relevant premises was not interrupted by the issue and subsequent dismissal for want of prosecution of the action by Lym Limited against the [respondent]". The appellants, let me explain at once, are the successors in title to Lym Limited (a company in liquidation) (whom I shall call Lym). The action by Lym against the respondent (the first action) was brought on 7 August 1990 and dismissed for want of prosecution on 5 January 1999. It is the appellants' contention that the mere fact of issuing (or perhaps issuing and serving) proceedings for the recovery of land stops time running in favour of the person in adverse possession.
2. Although the point arising is a pure point of law, I will briefly sketch in the factual background so as to show its practical consequences in the present circumstances.
3. The relevant property is a dwellinghouse and land known as "Riverside", Weir, Restronguet, Falmouth, in Cornwall. The respondent claims to have been in continuous and exclusive occupation of the property since the summer of 1977, jointly with a Mr Hoskins until 1989 and thereafter alone. The appellants say that in 1978 Lym removed from the land a number of trespassers then occupying it, and that on each of three inspection visits subsequently made in 1979 they found the property unoccupied.
4. Early in 1990 Lym instructed contractors to carry out works of clearance in the garden. The appellant acknowledges as much but denies that these works were inconsistent with her continuing exclusive possession. She furthermore asserts that she had in any event by 1990 been in continuous adverse possession for twelve years and was accordingly entitled to the land as against Lym.
5. On 7 August 1990, as stated, Lym commenced the first action which was ultimately dismissed for want of prosecution on 5 January 1999. The present action was then brought on 22 July 1999 and it is, of course, in this second action that the preliminary issue was directed to be tried. Whatever its outcome, either side could still succeed in their claim for possession. But whereas if the appeal fails the respondent will only have to establish that Lym's clearance work in 1990 did not end her exclusive occupation of the land (as an alternative to twelve years occupation prior to the clearance work), if it succeeds she will have to establish that she had been in continuous occupation since before August 1978 (despite Lym's evidence that the property was vacant in 1978/1979).
6. Those considerations, however, are essentially by the way. The sole issue before us is whether the first action, despite its dismissal for want of prosecution, nevertheless had the effect of preventing the respondent in the second action from praying in aid her continued occupation during the eight and a half years whilst that first action remained alive as years of adverse possession.
7. Before addressing the argument it is convenient first to set out the material provisions of the Limitation Act 1980.
8. S.15(1) provides:
"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."
9. S.17 provides:
"Subject to ... (b) S.75 of the Land Registration Act 1925; at the expiration of the period prescribed by this Act for any person to bring an action to recover land ... the title of that person to the land shall be extinguished."
10. S.75 of the Land Registration Act 1925 provides that the paper owners' registered title is not extinguished by the adverse possession but is held on trust for the adverse possessor who may then apply to have himself registered with the title.
11. Schedule 1 to the 1980 Act supplements s.15 by dictating when a cause of action accrues. The relevant paragraphs 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 while 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'); and where under the preceding provisions of this schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
(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 no 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."
12. Essentially, therefore, the true owners' cause of action accrues once his land is in adverse possession, and continues to be treated as accrued unless and until the land ceases to be in adverse possession. Adverse possession may cease (a) by the occupier vacating the premises, (b) by the occupier giving a written acknowledgment of the true owner's title (see ss.29 and 30 of the Act), (c) by the true owner's grant of a tenancy or licence to the occupier (even a unilateral licence - see BP Properties Limited v Buckler (1987) 55 P&CR 337), or (d) by the true owner physically re-entering upon the land. Once, however, the land has been in continuous adverse possession for twelve years, the owner is barred by s.15 from bringing an action to recover it and, indeed, his title to the land (assuming, as here, that it is registered) becomes held in trust for the adverse possessor who may himself apply to have the title registered in his own name.
13. On the face of the legislation, therefore, the true owner can succeed in an action to recover land provided he brings his action within twelve years; otherwise not. Apply that approach to this case. Had the appellants pursued the first action and proved that it had been brought before the respondent had enjoyed a continuous period of twelve years adverse possession, they would have been held entitled to recover the land. Because, however, they did not pursue and succeed upon that first action, they must now depend upon a second action and prove that it in turn was brought before the respondent had been in continuous adverse possession for twelve years.
14. How, then, does Mr Treneer for the appellants seek to benefit from the abortive first action? As I understand his argument, it is that adverse possession ceases not only in the four ways I have already identified, but also by the issue (or perhaps issue and service) of a claim for possession. Such a proceeding, he submits, is equivalent to re-entry onto the land: it constitutes a form of constructive possession by the true owner, sufficient at any rate to bring to an end the occupier's exclusive possession of the land.
15. In support of this argument Mr Treneer relies upon a passage in Cheshire and Burn's Modern Law of Real Property (16th edition) at p.987 reading:
Time which has begun to run under the Act is stopped, either when the owner asserts his right or when his right is admitted by the adverse possessor.
Assertion of right occurs when the owner takes legal proceedings or makes an effective entry on to the land."
16. No authority is cited for that proposition but I have no doubt that it is intended to reflect the views of this court expressed by Dillon LJ in BP Properties v Buckler (1987) 55 P&CR 337, 334:
"If proceedings to recover land are begun before there has been twelve years adverse possession - e.g. if they are begun in the eleventh year - then the right of action is, on the wording of ... s.15 of the 1980 Act, unaffected by the subsequent expiration of the twelve years period while the proceedings are pending. If that is so, it could not, in my judgment, be a correct reading of [s.17 of the 1980 Act] to hold that the title of the plaintiff to the land is extinguished while an action for the recovery of the land, launched in due time, is still pending. On Lord Radcliffe's approach [in Fairweather v St Marylebone Property Co Ltd [1963] AC 510, 535] the title can only then be extinguished if and insofar as it cannot be established and vindicated by the action which has been brought in due time. So again, if an action to recover land is brought within the twelve years and judgment for possession is given in that action, albeit after the expiration of the twelve years, it would be idle to suppose that the judgment for possession could, because of the expiration of the twelve years, never been enforced. The judgment must be enforceable if the action was started in due time." (emphasis added)
17. In short, both Cheshire and Burn, and Dillon LJ, are making the point that, once proceedings are brought in time, the occupier cannot then seek to rely on the subsequent passage of time to establish within those proceedings a defence by way of adverse possession.
18. Nor is any support for the appellants' argument to be found in Nicholls LJ's judgment in Mount Carmel Investments Limited v Peter Thurlow Limited [1988] 1 WLR 1078, 1085:
"... no one, either lawyer or non-lawyer, would think that a householder ceases to be in possession of his house simply by reason of receiving a demand that he should quit. ... On [the owner's] argument time starts to run afresh by making a demand for possession. That is in flat contradiction to the long-recognised position and the statutory scheme where a squatter is in possession of another's land. Unless the squatter vacates or gives a written acknowledgment to the owner, the owner has to issue his writ within the prescribed time limit. Otherwise he is barred, because by s.15(1) he is barred from bringing any action to recover the land after the expiration of the 12-year period."
19. None of these writings address the situation arising on the instant appeal where the owner fails in his action but nevertheless seeks to rely upon the mere fact of having brought it to make good a second action.
20. That seems to me impossible on the plain wording of the statute. With regard to any particular action the relevant time, and the only relevant time, for consideration of adverse possession is that which has expired before such action is brought. That is the language of s.15 and, as Dillon LJ explained, that is the effect of the legislation. The fallacy in Mr Treneer's argument is in supposing that because one ignores in the first action any adverse possession which follows the writ, so too that same adverse possession falls to be ignored in the second action. That is just not so and there is nothing in the statute or authorities to suggest that it is. For the purposes of any particular action, the issue of a writ in earlier proceedings is no more relevant than a demand for possession. In Mount Carmel Limited v Peter Thurlow Limited such a demand was held not to start time running afresh; no more would the service (still less the mere issue) of some earlier writ. Were it otherwise, as the respondent points out, all the true owner would have to do to avoid adverse possession claims is issue (and perhaps serve) a writ every twelve years without more.
21. In summary, there is no question of the issue of a writ "stopping time from running" (itself a non-statutory concept and perhaps a misleading rather than helpful expression). The issue of a writ, for the purposes of the action which it begins, prevents the true owner from being time barred under s.15 providing twelve years adverse possession have not already accrued. It serves no other purpose.
22. It follows that I would reject Mr Treneer's argument, hold that the judge below correctly decided the preliminary issue (although it was perhaps not formulated in the most helpful terms), and dismiss this appeal.
23. I agree .
24. I also agree.
Order: (Appeal dismissed with costs; legal aid assessment)

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