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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 >> Smart v London Borough of Lambeth  EWCA Civ 1375 (07 November 2013)
Cite as:  HLR 7,  46 EG 108,  EWCA Civ 1375
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ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
LORD JUSTICE FLOYD
| ROBERT SMART
|- and -
|THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH
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Terence Gallivan (instructed by Devonshires) for the Respondent
Crown Copyright ©
Lord Justice Floyd:
"(i) Lambeth would enter into a licence with Solon;
(ii) Solon in turn would enter into agreements with a housing co-operative (which insofar as these houses are concerned came to be known as the Lillieshall Road Housing Co-operative Limited) to provide temporary accommodation for its members;
(iii) the squatters in the houses in Lillieshall Road would become members of the co-operative and they would be permitted to occupy various houses on the road on a temporary basis;
(iv) Solon would obtain small grants from the Housing Corporation under the Housing Act (and therefore called mini-HAGs) to carry out repairs to the houses;
(v) the grant monies would be passed to the co-operative to administer in putting the houses occupied by its members into habitable condition."
"The later records show that the recommendations in this briefing were approved and the council resolved to enter into the scheme which had been outlined. The subsequent documentary evidence satisfies me, on the balance of probabilities, that the policy and the scheme were then implemented and whether directly or indirectly the squatters were granted permission by Lambeth to occupy their houses in accordance with the scheme."
"At that point in time, therefore, the occupiers of the houses, including the occupiers of numbers 10, 11 and 19, had begun to pay fees to the co-operative in respect of their occupation of the houses. The co-operative expressly recognised that Lambeth was the owner of the houses and that it was entitled to control the occupation of the houses in the street, which they did by delegating the day to day administration of the occupation and funding and carrying out of repairs to the co-operative and Solon."
"(v) It is intended that the Council will make available the property(ies) for improvement under the Mini HAG scheme administered by the Housing Corporation to bring vacant short life properties back into use
(vi) [Solon] will take and retain ultimate responsibility for the management of the property(ies) and will apply for Mini HAG Finance for the improvement and management of the property(ies)
(vii) [Solon] in turn will enter into a management agreement with [LRHC] whereby [LRHC] will in effect act as Managing Agent for [Solon] such agreement to be subject to the prior approval of the Council."
1. The Council hereby licenses [Solon] to use and permit those persons defined in paragraph (2) hereof but no other persons to occupy the property(ies) from the date hereof until the expiry of the 'Licence Period'. [Solon] will take and retain ultimate responsibility for improvement and management of the property(ies).
2. All the occupants of the property(ies) will be licensees of and members of [LRHC] and shall first be registered on the Council's Housing Waiting List.
13. Provided always and it is hereby agreed and declared whereas (a) [Solon] intends to part with possession of the property(ies) (b) [LRHC is not a tenant within the meaning of Section 28(3) of the Housing Act 1980 and (c) [Solon] shall not grant nor shall this licence be construed as granting exclusive possession of any property(ies) or any part or parts thereof to any individual.
Neither [Solon] nor [LRHC] nor any person or persons accommodated in any of the properties the subsequent licence [sic] shall be secure tenants by virtue of Sections 37(b), 28(3) and the appropriate paragraphs of the III Schedule of the Housing Act 1980".
"LRHC shall assume full management responsibility from the date of this agreement.
LRHC will allocate the parts of the dwelling to its members as it sees fit bearing in mind at all times Solon's aims and objects are to provide housing for people in necessitous circumstances. LRHC may only grant a right of occupation in the form attached hereto." (emphasis supplied)"
"LRHC will keep and maintain clear records of fees received from each occupant and such records shall be available at all reasonable times for scrutiny by Solon or its agents.
LRHC shall be manager of Solon for the dwellings in respect of moving in and out of residents, the collection of fees, visiting occupants in the event of arrears, the general upkeep of the communal parts and the external parts of the dwelling and the neighbourly behaviour of occupants.
Solon will upon request from LRHC take proceedings to recover possession against any occupant in breach of agreement or of the conditions of occupation contained in the attached licence or against any occupant in arrears with charges for more than four weeks…".
"…the Council gives leave and licence to [Solon] in common with [Lambeth] to use and manage the properties on behalf of [Lambeth] for the periods agreed upon the terms and conditions hereinafter appearing."
"The licensee shall be able to grant a subsidiary interest in the individual properties to a Housing Co-operative which has been recognised by the Lambeth Housing Committee."
"No action shall be brought by any person to recover any land after the expiration of 12 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."
"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."
"(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.
(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 person entitled to 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 any 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. "
"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 by or possession by the squatter for the purposes of the Act."
"Whether B.P. Properties Ltd. could or could not in law, in the absence of consideration have sought to determine in her lifetime the licence granted to Mrs. Buckler by the two letters, they did not in fact seek to do so. Had they sought to do so, they would in the absence of any repudiation of the letters by Mrs. Buckler have had to give Mrs. Buckler a reasonable time to quit as with any licensee.
The nature of Mrs. Buckler's possession after receipt of the letters cannot be decided just by looking at what was locked up in her own mind. It must depend even more, on this aspect of the case, on the position as seen from the standpoint of the person with the paper title. What could that person have done? The rule that possession is not adverse if it can be referred to a lawful title applies even if the person in possession did not know of the lawful title; the lawful title would still preclude the person with the paper title from evicting the person in possession. So far as Mrs. Buckler was concerned, even though she did not "accept" the terms of the letters, B.P. Properties Ltd. would, in the absence of any repudiation by her of the two letters, have been bound to treat her as in possession as licensee on the terms of the letters. They could not have evicted her (if they could have done so at all) without determining the licence.
I can see no escape therefore from the conclusion that, whether she liked it or not, from the time of her receipt of the letters, Mrs. Buckler was in possession of the farmhouse and garden by the licence of B.P. Properties Ltd., and her possession was no longer adverse within the meaning of section 10 of the 1939 Act."
The arguments on this appeal
Lord Justice Underhill
Lord Justice Longmore