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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2008] EWCA Civ 1442

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Neutral Citation Number: [2008] EWCA Civ 1442
Case No: B5/2008/0684

Her Honour Judge Marshall QC

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



St Pancras and Humanist Housing Association Ltd
- and -

Allan Christian Leonard


(Transcript of the Handed Down Judgment of
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Stephen Jourdan (instructed by Messrs Dewar Hogan) for the Appellant
Nicholas Grundy (instructed by Messrs Batchelors) for the Respondent
Hearing date: 14th November 2008



Crown Copyright ©

    Sir William Aldous:

  1. St Pancras and Humanist Housing Association Limited ("the Housing Association") claimed possession from Mr Leonard of a garage to the rear of No 110 Haverstock Hill. Mr Leonard resisted that claim. He alleged that he had at least 12 years adverse possession. That was denied, but the Housing Association alleged that if there was adverse possession, then Mr Leonard was estopped from contending that the Housing Association was entitled to possession.
  2. The proceedings came on for hearing before Her Honour Judge Marshall QC in the Central London County Court. In her careful judgment she held that Mr Leonard had established 12 years of adverse possession, but upheld the Housing Association's case on estoppel. Against that decision and the order Mr Leonard appealed and the Housing Association cross-appealed.
  3. The Background

  4. Nos 104 to 110 Haverstock Hill ("the Houses") consist of two semi-detached houses containing flats which together had about 125 ft of back garden. At the back corner of No 110 is the relevant garage. It is accessed from a side road, Park Hill Road. The wall dividing the gardens was in the 1970's dilapidated so as not to impede movement from one side to the other.
  5. Around 1973 it became known that the London Borough of Camden was seeking to acquire the houses. Squatters moved in. Mr Leonard, described by the judge as a seasoned squatter, moved into No 106. In 1975 Mr Leonard broke into the garage. He and Mr Turek patched it up and put a padlock on the entrance gates. It was from that date that the judge held that the 12 years adverse possession started.
  6. It subsequently became apparent that Camden had a plans to demolish the houses and build a block of flats on the land. When that became generally known the residents, the squatters and people living in the area organised resistance to those plans. As a result the Bell Park Housing Association, referred to as "the Co-op", was founded. It was not a fully mutual association of residents, but even so the Co-op obtained sufficient finance to buy a lease of the houses from Camden, but not sufficient for a lease of all the gardens. Thus in 1983 Camden granted to the Co-op a long lease of the houses and some 25 ft of land behind them for a premium of 100,000. The remaining 100 ft of garden which included the garage remained in the ownership of Camden.
  7. About this time arrangements were made to refurbish the flats in the houses and the residents were decanted. They returned in about 1987.
  8. On 1st March 1985 a long lease of the back part of the gardens, including the garage, was granted by Camden to the Co-op for a premium of 85,000. On that date the Co-op became on paper entitled to possession of the garage.
  9. In 1999 the Co-op transferred its engagements to the Housing Association. The Housing Association became concerned about the state of repair of the garage. They decided to demolish it and in 2006 sought to implement that plan. To prevent demolition Mr Leonard barricaded himself into the garage and then sought an injunction to prevent the Housing Association from demolishing it.
  10. The Housing Association did not at that time press ahead with their plan to demolish the garage. However in 2007 they issued an ultimatum to Mr Leonard and his wife to remove their possessions from the garage. He refused and the Housing Association started these proceedings on the 2nd April 2007. By February 2006 Mr Leonard had become aware that ownership could be acquired by 12 years adverse possession; thus the pleaded defence.
  11. The Judgment

  12. Mr Leonard's case was that he had been in sole possession of the garage between 1975 up to the present time. The judge concentrated upon the 12 years between 1975 and 1987.
  13. Having reviewed the law on adverse possession, the judge turned to the evidence. Mr Leonard gave evidence that he intended, when he padlocked the gates to the garage, to take possession of it. Mr Leonard rejected the evidence of witnesses called by the Housing Association to the effect that the garage was treated as communal property by those living in the houses. As to the evidence given by witnesses called by the Housing Association that they had had a key to the garage and had stored belongings in it, Mr Leonard asserted that was done with his permission.
  14. The judge referred to the evidence that some occupants of the houses had used the garages to store belongings without Mr Leonard's involvement and others had with his permission. The judge concluded that the relevant issue was whether Mr Leonard had overtly or covertly the intention to maintain his possession of the property.
  15. In her judgment the judge said:
  16. "142. As to the general point as to other persons using the property, I find that Mr Leonard's initial acts established him as being in the position of possessor from at least mid-1975, and therefore he became the person with a better right to possession than anybody who gained access to the property without his authority after that time. Such a person was merely a trespasser against him, and could have been ejected by him. Unless that other person succeeded in ousting Mr Leonard from his possession and establishing a better possession, then in my judgment Mr Leonard continued to be in possession, and therefore adverse possession. It seems that insofar as Mr Leonard did not authorise other persons' use of the premises, he was either unaware of the trespassers or was prepared to tolerate them. I do not find that this displaced the necessary "intention to possess", which I find that he had, when using the property and exercising the degree of control which he did in fact exercise, over the period from 1975 to at least the return after the decant.
    144. The other persons who accessed the property, I find, were not doing anything that would amount to a displacement of Mr Leonard, which is what would be required in order to break his assertion of possession at the beginning. They were, rather, like the child grazing the cow in Powell v. McFarlane, simply making use of the property. They may have done so on the basis that it was only fair that everybody should have a bit of use of it if they needed it, but, as I have said, if Mr Leonard did not share that intention, it is irrelevant, and I find that he did not. This is not to his credit in a communal situation, but he struck me as being a coloniser maybe a closet coloniser, but one nonetheless. Mr Leonard was seeking to maintain his right to possession. I accept that at this stage he did not equate this with ownership, but, practically, he was asserting a right to possession for as long as he could, to best possible advantage."
  17. The judge went on to conclude that from 1975 to 1987 there was nothing sufficient to break Mr Leonard's assertion of possession established back in 1975 and that he had had 12 years possession sufficient to enable him to claim possessory title of the garage for himself. That of course gave him an overriding interest that could be asserted against the Housing Association.
  18. The basis for the estoppel was Mr Leonard's behaviour as evidenced by the minutes of the management committee of the Co-op of which Mr Leonard was a member. The judge held Mr Leonard had at those meetings created the impression that he accepted the garage was communal property. The judge said:
  19. "151. This shows, in my judgment, that he was conscious of the impression that he was creating with regard to an acceptance that the garage was communal property. Instead of making his claims clear (in other words, saying that in so far as the Co-operative had a lease or, before 1995, was to get a lease, "I claim to be entitled to the first right to possession personally"), he was trying to gain that advantage in fact, but without saying so.
    152. In my judgment, that effectively amounts to a misrepresentation. Bearing in mind that the law has moved on from Ramsden v. Dyson as indicated by the decision of Oliver J in the Taylors Fashions case, the question is whether it is conscionable that he should be allowed, at this stage in 2006 or 2007, to go back on the effective statement of his position, which he creates by impression. I find that it is not. Mr Leonard gave the clear impression to Bell Bark that he was not claiming anything which would conflict with their getting a lease in possession and property which they would be entitled, in their communal role, to decide what to do with. He knew they would negotiate with Camden on that basis and make themselves liable on the lease covenants and for the payment of the premium.
    153. Looking at the minutes that I have referred to, it is to my mind 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."
  20. The judge recorded that the law of estoppel relied on by Mr Leonard was contained in Willmott v. Barber (1880) 15 Ch. Div 96. She said that it was central to his argument "That the requirement for such an estoppel is that there should be a representation made with regard to particular rights." She recorded that counsel for Mr Leonard has submitted that he had said nothing and made no representation about his rights. The main requirement for a proprietary estoppel as set out in Willmott v. Barber was not therefore made out.
  21. The judge went on to set out and apply this passage from the judgment of Oliver J in Taylors Fashions v. Liverpool Trustees Ltd [1982] 1 QB 133 at 151:
  22. "Furthermore, the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach, which is directed rather at ascertaining whether in particular individual circumstances it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquiring whether the circumstances can be fitted within the confined of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour. So regarded, knowledge of the true position by the party alleged to be estopped becomes merely one of the relevant factors. It may even be a determining factor in certain cases in the overall enquiry. This approach, so it seems to me, appears very clearly from the authorities to which I am about to refer."
  23. That passage was approved by the Court of Appeal in Habib Bank Ltd v. Habib Bank AG Zurik [1981] 1 WLR 1625 at 1285.
  24. Lord Walker in Cobbe v. Yoemans Row Management Ltd [2008] 1 WLR 1752 at 1779 referred to that passage as an important observation. He pointed out at p 1780:
  25. "This passage [the passage from Taylors Fashions] certainly favours a broad or unified approach to act as estoppel. But it is emphatically not a licence for abandoning careful analysis for unprincipled and subjective judicial opinion."
  26. In Cobbe, the claimant, an experienced property developer orally agreed to purchase a number of flats. The arrangement was that the defendants would obtain vacant possession and then the claimant would develop the site. Acting on that belief and encouraged by the defendants, the claimant spent time and money in applying for and obtaining planning permission. After planning permission was granted, the defendants withdrew from the oral agreement. The claimant started proceedings alleging that the defendants were estopped from denying that he had obtained a beneficial interest in the property.
  27. The House of Lords held that a proprietary estoppel could not be founded purely on unconscionable behaviour but required a proprietary claim. That was missing in that case as the oral agreement was void having regard to section 2 of the Law of Property (Miscellaneous Provision) Act 1989. As Lord Walker put it, the claimant knew that the defendants were bound in honour only and so in the eyes of equity their conduct, although unattractive, was not unconscionable.
  28. The facts of Cobbe are very different from the facts of the present case. In the present case the Housing Association claimed a proprietary right based on the lease and were seeking to assert it against Mr Leonard.
  29. Mr Jourdan, counsel for Mr Leonard, submitted that knowledge of a right to title was an essential element of proprietary estoppel. Thus a person who by conduct represented expressly or indirectly that the actions of another were not objectionable could not be prevented by estoppel from relying upon his legal rights if he did not have knowledge that the actions carried out were contrary to his rights. He referred us to a number of cases to support that submission including Armstrong v. Sheppard & Short Ltd [1959] QB 384.
  30. I hesitate to resort to common sense, but it seems to me that it is pure common sense that in the ordinary course of events it would not be unconscionable for a person to deny that which he knowingly or unknowingly allowed another to assume, if the person did not believe he had any right to object to the others action. In such a case I can see no reason why, in the ordinary course of events, a court should prevent him asserting his rights once he had knowledge of them. I have qualified that statement as there may be circumstances, such as when a person should have known of his rights if he had not shut his eyes or where delay in asserting his rights is so extensive that an estoppel may arise. Such is not this case and was not considered in argument.
  31. Mr Jourdan submitted that the judge had failed to take into account that Mr Leonard had no knowledge of the law of adverse possession nor that he had a proprietary claim to the garage. It followed, he submitted, that there was nothing unconscionable in Mr Leonard's actions during the period that he was a member of the management committee of the Co-op.
  32. The judge set out extracts from the minutes of the management committee of the Co-op between March 1984 and October 2000. She said:
  33. "148. It will be seen from my reading of these minutes that Mr Leonard, by his silence and by going along with all the discussions and the proposals, encouraged the member of the Bell Part Housing Co-operative (and indeed the Co-operative management itself) 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. The Co-operative took the lease, and made themselves liable on the repairing covenants in relation to the garage at the time. They were taking responsibility for it.
    149. I find that they acted to their overall detriment in that sense and Mr Leonard went along with everything.
    150. Either way, I am perfectly satisfied that Mr Leonard gave the impression to everybody else that he was in no way seeking to assert "ownership" of the property, whether in its full legal or any sense, nor, to assert any individual and personal preferential rights to possession or occupation of the garage, above those of anybody else."
  34. There was cogent evidence in my view to support the judge's conclusion on representation and detriment. No appeal against those conclusions could succeed.
  35. I return to the submission of Mr Jourdan namely that Mr Leonard did not know of the law on adverse possession and therefore of his right to possession of the garage: thus his failure to assert those rights was not unconscionable. I have no doubt that the judge had in mind that Mr Leonard did not become aware of his potential right to ownership having regard to adverse possession until at the earliest 2006. She however found that Mr Leonard had a focused intention with regard to the garage because of his own desire to use and possess it. He was seeking to further his own particular interest with regard to the garage insofar as he could, rather than any commercial interest. The judge was satisfied that Mr Leonard had the necessary intention to occupy the garage to the exclusion of other persons.
  36. In paragraph 144 of the judgment set out above, the judge held Mr Leonard was seeking to maintain his right to possession. She accepted that he did not equate this with ownership. As she held "Practically, he was asserting a right to possession as long as he could to best possible advantage."
  37. Mr Jourdan's submission fails because Mr Leonard believed he had a right to possession of the garage. As the judge held "Those attending the meeting would have proceeded in the general belief that when negotiating for a lease which would give them actual control and possession of the garage according to the interest being created. Mr Leonard at all times believed that he had a possessory right which enabled him to use the garage." Mr Jourdan accepted that Mr Leonard believed that he had exclusive possession as against the other residents of the houses, but he submitted that at no time did he know that he had a right of possession as against Camden. He is correct that prior to 2006 Mr Leonard had no knowledge of his right to ownership due to the law on adverse possession. He did however believe he had the right to use the garage. He believed that that right would continue after the Co-op acquired a lease. Despite that he encouraged the Co-op to enter into negotiations with Camden on the basis that the garage would become leasehold property with the obvious consequence that it would be available communally.
  38. I conclude that the judge came to the right decision for the right reasons. I would dismiss the appeal.
  39. The Cross-appeal

  40. Having regard to the decision reached on the appeal, there is no reason to lengthen this judgment by detailed consideration of the submissions on the cross-appeal. It is sufficient to record that I was not persuaded that the judge erred in law when considering whether the intention of Mr Leonard had been made manifest. The conclusions of fact are unappealable. I would therefore dismiss the cross-appeal as well.
  41. Lord Justice Goldring:

  42. I agree.
  43. Lord Justice Lawrence Collins:

  44. I also agree.

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