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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mitchell v Watkinson & Anor  EWHC 2266 (Ch) (25 July 2013)
Cite as:  EWHC 2266 (Ch)
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BIRMINGHAM DISTRICT REGISTRY
The Priory Courts, 33 Bull Street, Birmingham B4 6DS
B e f o r e :
| Jacki Thomas Laughlin Mitchell
|- and -
|(1) John Watkinson
(2) Andrew Williams
Mr David Mitchell (instructed by Knights LLP) for the Defendants
Hearing dates: 26th, 27th, 28th February and 1st March and 6th June, 2013
Crown Copyright ©
Mr Justice Morgan :
The case in summary
(1) there was a northern section which the Mitchell family later sold (in 1979) to a Mr Phillips; there is no issue in these proceedings as to this northern section;
(2) there was a middle section which was sold to four trustees for the Ryeworth Cricket Club in 1975; in these proceedings, it is accepted that the surviving trustees are the current freehold owners of that land; the middle section was used for the purposes of the Ryeworth Cricket Club and is now used for the purposes of another club, the Charlton Kings Cricket Club, which was formed following the merger of the Ryeworth Cricket Club with the Whitefriars Cricket Club.
(3) there was an area of land which is immediately to the south of the middle section and which is the subject of the Claimant's claim to possession; the Claimant is the registered proprietor of the registered title in relation to this area; the Particulars of Claim referred to this land as "the disputed area"; there is a dispute as to the use which was made of the southern section from time to time; the Defendants say that this land was used and occupied together with the middle section for the purpose of a cricket field and outlying areas and that the Claimant's title to this land is barred by the provisions of the Limitation Act 1980 ("the 1980 Act");
(4) there was an area of land comprising a pond and some trees and shrubs to the south of the "disputed area" as described in (3) above; the Claimant is the registered proprietor of the registered title in relation to this area; this fourth area was not part of "the disputed area" as defined in the original pleadings; however, in more recent pleadings, the Second Defendant appears to claim that the Claimant's title to this area (as well as to the "disputed area") is barred by the provisions of the 1980 Act.
The statutory provisions
"15 Time limit for actions to recover land.
(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.
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
17 Extinction of title to land after expiration of time limit.
(a) section 18 of this Act;. . .(b)
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished."
"Accrual of right of action in case of present interests in land
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.
Accrual of right of action in case of future interests
5(1) Subject to sub-paragraph (2) below, a tenancy from year to year or other period, without a lease in writing, shall for the purposes of this Act be treated as being determined at the expiration of the first year or other period; and accordingly the right of action of the person entitled to the land subject to the tenancy shall be treated as having accrued at the date on which in accordance with this sub-paragraph the tenancy is determined.
(2) Where any rent has subsequently been received in respect of the tenancy, the right of action shall be treated as having accrued on the date of the last receipt of rent.
Right of action not to accrue or continue unless there is adverse possession
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.
What is in dispute in relation to the southern section
The conveyancing history
The grant of the tenancy
Without a lease in writing?
"In the light of the historical background, and bearing in mind the familiar distinction, drawn for example in sections 9 and 7 of the Statute of Frauds (now sections 53(1)(c) and 53(1)(b) of the Law of Property Act 1925), between those transactions required to be "in" writing, that is, where the writing required by the statute is dispositive, and those requiring only to be "manifested and proved by some writing," that is, where the writing required by the statute need be no more than evidential, one's initial impression is that the "writing" referred to in paragraph 5(1) of Schedule 1 to the Limitation Act 1980 must be dispositive and not merely evidential. Paragraph 5(1), after all, refers to a "lease in writing" (emphasis added). Indeed, as a matter of simple English language, that is what one would expect the words to mean.
But the matter does not rest there, because I have been referred to two authorities which, in my judgment, indicate that this is indeed the correct meaning of the words. In Doe d. Landsell v Gower (1851) 17 Q.B. 589 (sic) the question was whether an entry in a vestry book, signed by the tenant and by one, but not by all, of the parish officers, was a "lease in writing" within the meaning of section 8 of the Real Property Limitation Act 1833 . It was held by the Court of Queen's Bench (Patteson, Coleridge and Wightman JJ.) that it was not, because only one of the parish officers had signed the vestry book and he had not professed to sign on behalf of all. The facts of the case were very far removed indeed from the facts of the present case, but the reasons given by the judges for arriving at their decision are apposite. They are all to the same effect. Patteson J., at p. 598, made it clear that, in his opinion, what section 8 required was an "actual lease," that is, "not . . . a document, generally, but . . . a lease; . . . something which is to pass an interest." Coleridge J., at p. 599, said that what section 8 required was "a lease in writing: that is, not merely an instrument which would be evidence of the conditions of holding, but one passing an interest." Wightman J., at p. 600, said that section 8 "requires an instrument in writing that may operate as a lease." In my judgment this is clear authority for the proposition that there was no lease in writing for the purposes of section 8 of the Real Property Limitation Act 1833, and thus there is no lease in writing for the purposes of paragraph 5(1) of Schedule 1 to the Limitation Act 1980, if the writing is merely evidential. If there is to be a lease in writing the writing must itself at law "pass an interest" (to use the words of Patteson and Coleridge JJ.) and "operate as a lease" (to use Wightman J.'s words).
Moses v Lovegrove  2 QB 533, the only other authority on the point to which I was referred, is to the like effect. One of the questions in that case was whether a rent book was a lease in writing within the meaning of section 9(2) of the Limitation Act 1939 . The Court of Appeal held that it was not. Sir Raymond Evershed M.R. said, at p. 536:
"The alleged lease in writing consisted of the rent book, which was put in evidence. The judge rejected the view that the rent book was such a lease in writing within the meaning of the Act, and I think he was entirely right in that conclusion. The rent book is, I think, what it purports to be, and what it is called, a rent book, that is, a book containing acknowledgements for payment of weekly sums of rent, and containing also, in pursuance of the terms of the legislation, a reference to the conditions on which the tenant was holding his tenancy. I think that on the face of it, it was not intended to be, and is not a contract for granting a tenancy, still less a lease creating an estate. It is, I think, at most what it was intended to be, and what it is on the face of it called, a book evidencing the terms on which the tenant held."
Romer L.J., at p. 543, said that he entirely agreed with the Master of the Rolls.
These authorities make it clear, in my judgment, that a written document, whatever its terms, however clearly referable to the existence of a lease, and however comprehensive it may be in setting out the terms of the lease, is not a lease in writing for the purposes of paragraph 5(1) of Schedule 1 to the Limitation Act 1980 unless at law the document itself operates to "pass an interest" (the words used by Patteson and Coleridge JJ.), itself "operates as a lease" (the words used by Wightman J.) or itself "creates an estate" (the words used by Sir Raymond Evershed M.R.). "
The Landlord and Tenant Act 1954
Paragraph 8 of schedule 1 to the 1980 Act
"Second, as a matter of law, the effect of para 5 was only to deem the tenancy to be at an end for the purposes of the Limitation Acts, so that the paper owner could not object to time running on the sole ground that an ex-tenant was there by grant. The possession obtained by operation of law by the creation of the tenancy expired with the expiry of that tenancy. Thereupon, the tenant had to establish possession by corpus and animus in the same way as any other person, and he had to do so under the rules envisaged under para 8 of the Schedule, as had been understood in the well-known judgment of Slade J (as he then was) in Powell v McFarlane, recently upheld, in all material matters, by the House of Lords in JA Pye (Oxford) Ltd v Graham  UKHL 30."
" I will substitute for Russell LJ's references to the then legislation references to the relevant paras of the Schedule, which are in the same terms as the statutory provisions to which Russell LJ was referring. The lord justice said, at p122F:
"I have no doubt that for this purpose the possession of a tenant is to be considered adverse once the period covered by the last payment of rent has expired so that paragraph 8(1) does not bear further upon paragraph 5. Nor do I doubt the applicability of paragraph 5 to the present case just because the freeholders were content that the rector should not pay his rent and did not bother to ask for it for all those years. In Moses v Lovegrove, in this court it was assumed on all hands when paragraph 5 apparently operates, adverse possession starts: see especially Lord Evershed, and Romer LJ. The principle clearly accepted was that once the period covered by the last payment of rent expired, the tenant ceased to be regarded by the Limitation Acts as the tenant." "
and continued at  to  as follows:
" (2) However, since [counsel for the Respondent] conceded in terms that para 8 applies to every case covered by the Schedule, she is not able to rely upon Russell LJ in his literal terms. Hayward was a case where there was found to be actual possession on the part of a former tenant throughout the 12-year period, so the issue argued in our case, that the claimant did not have anything that could properly be called "possession" at all, and possessed because, and only because, of his status as a tenant, did not arise. I think that the proper way of approaching Russell LJ's observation is to concentrate upon his reference to adverse possession. Russell LJ did not have the benefit of the exposition of this expression that is now to be found in the speech of Lord Browne-Wilkinson in Pye, at paras 35 to 38. However, I cannot think that the lord justice made the error there identified of thinking that, for possession to be adverse, there must be a positive act of ouster or dispossession. And, in any event, as [counsel for the Respondent] pointed out, that latter case of ouster or dispossession is addressed in the Schedule to the Limitation Act by para 1, and not by para 5, para 1 specifically directing itself to what occurs where there has been an act of dispossession or discontinuance. Rather, Russell LJ pointed out that upon the determination, at least for Limitation Act purposes, of the tenancy, the possession held by the tenant moves from being possession with the landlord's consent to being possession held without his consent, and thus, for limitation purposes, adverse.
 (3) I agree that this analysis does not exclude the possibility that a tenant might have so feeble a connection with the land (the example given in argument was of a man who has gone off to Australia leaving the front door of the demised premises open) that, upon the determination of the tenancy, he could not be said to be in possession at all. But that, in my view, would have to be an extreme case. The judge specifically found that it did not arise here, by his findings at p28 of his judgment, which I have already set out.
 (4) It follows from that analysis that [counsel], for the appellant, was, in my judgment, wrong in his argument that, upon the determination of the tenancy, the matter ought to be looked at afresh, by straightforward application of the approach in Powell, without regard to the fact that the tenant was a tenant holding over. Such an approach would plainly be inconsistent with what this court said in Hayward. I consider, therefore, that Mr Cooper's predecessor in representing the appellant was, in fact, correct when he said:
The true distinction between a "trespasser case" and a "former tenant case" is that in the former, animus possidendi is required in order to establish that the paper owner has been dispossessed. That is not necessary in a "former tenant" case, because as the freeholder has permitted the tenant into possession, he will normally continue in possession, just as he did before the payment of rent stopped.
 Mr Cooper specifically disclaimed that passage, as indeed he had to do. In my respectful judgment, it, at least in the second sentence, was correct.
 (5) It was, however, sought to displace the judge's finding as to continuous possession by an argument that that finding was contrary to the facts. In view of the effect of the pre-existing tenancy, which I have already indicated and which the judge found, that argument could, in my view, only be an argument that possession had been lost by the operation of para 8(2) during the currency of the 12 years. That argument was advanced again in the original skeleton argument, but, in my view, was not well founded."
Holding over in relation to the southern section
(1) from time to time cut the grass on the southern section;
(2) from time to time organised working parties (in particular in 1979 and 1985) to tidy up the southern section;
(3) hit cricket balls into the southern section and then searched for them there;
(4) allowed spectators to walk over or sit on the southern section;
(5) held bonfire night parties, to which the public were invited, on the southern section.
The pond area
The overall result