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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Fairweather v St Marylebone Property Co [1962] UKHL 1 (16 April 1962) URL: http://www.bailii.org/uk/cases/UKHL/1962/1.html Cite as: [1962] UKHL 1, [1962] 2 All ER 288, [1963] AC 510, [1962] 2 WLR 1020 |
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Parliamentary
Archives,
HL/PO/JU/4/3/1098
HOUSE OF LORDS
ST. MARYLEBONE PROPERTY CO. LTD.
Lord Radcliffe
16th April 1962.
Lord
Radcliffe
Lord
Denning
Lord Morris of
Borth-y-Gest
Lord
Guest
my lords,
This
appeal raises a short but, possibly, important point with regard to
the
effect of the Real Property Limitation Acts. For the purpose
of deciding it
we were invited to consider a good deal of ancient
learning and somewhat
obscure pronouncements by sages of the past
as to such subjects as the
operation of mergers and surrenders and
the " drowning" of estates. I
do not at all complain of
this, because the argument was in itself informa-
tive and, no
doubt, such statutes as the Real Property Limitation Act,
1833,
cannot be understood without reference to older forms arid
conceptions of
conveyancing, many of which are now outmoded.
Nevertheless I have come
to the conclusion that the solution of
the problem which we have before us
depends upon nothing more than
the inferences to be drawn from one or
two principles about real
property limitation that are themselves, I believe,
incapable of
being disputed at the present day.
Let me try
to state our facts in skeleton form, for their details do not
con-
tribute anything that is material. What is in dispute between
the Appellant
and the Respondents is which of them is presently
entitled to possession of
part of a shed. The shed has been so
constructed at some past date that its
entrance is on a property
known as No. 311 West End Lane, Hampstead, and
its back wall on
the adjoining property, No. 315 ; three-fourths of the length
in
315, one-fourth in 311. The Respondents own the freehold of No.
315,
and since they acquired it they have bought and taken a
surrender of the only
outstanding lease of that property, a lease
for 99 years granted in 1894 to
expire by effluxion of time on the
29th September, 1992.
The
Appellant derives his rights to the shed from a sublease of the
ground
floor and shop of No. 311, of which he is the assignee and
which runs for
a term of 21 years from the 29th September, 1951.
There is no dispute
that that sublease included the shed in the
premises demised, as appurtenant
to the ground floor and shop, or
that there passed under the demise squatter's
rights to so much of
the shed as was actually on the site of No. 315. The
squatter's
rights in question arose from adverse possession of that part of
the
shed by the Appellant's predecessors in title, who, since the
year 1920, had
maintained adverse possession without
acknowledgment of title against the
lessee of No. 315, who or
whose successors in title have now surrendered
their lease to the
Respondents.
The
Respondents' claim to possession can be stated in a few words.
They
are the fee simple owners of No. 315, including the site of
the shed, so far as
it is on that land; they have cleared off the
lease which stood between them
and their present right to
possession ; and, although the Appellant as squatter
was entitled
to hold possession against the lessee, he had held no
adverse
possession against them until by the surrender of the
lease, which took place
on the 14th December, 1959, their right to
claim possession from him accrued
for the first time. As they
'began their ejectment proceedings in August, 1960,
their right is
not statute barred.
The
Appellant's position is a little more complicated to state. By 12
years
adverse possession as against the lessee of No. 315 his
predecessor, he says,
acquired a squatter's rights in that part of
the shed that was on the property
and upon that event the lessee's
title thereto became extinguished. That
extinguishment would have
occurred some time in the year 1932. Had the
lease continued for
its full term, until 1992, he would have been entitled by
virtue
of his rights against the lessee to continue to occupy the shed as
squatter
and the lessee, he says, cannot by surrendering the lease
to the landlord put
the landlord in a position to claim possession
against him before the time
2
when the
lease would have expired. One branch of his argument is to say
that
the lessee had lost any right or title to possession of the shed,
because
his title was extinguished under section 34 of the Real
Property Limitation
Act, 1833, and he had nothing, therefore, in
this respect that he could transfer
to the landlord: the other
branch involves the proposition that until 1992
the landlord could
only claim a present right to possession through the lessee
and,
if the lessee himself had no right to possession against the
squatter,
the landlord claiming through him could be in no better
position.
It is
plain that the case on each side involves several deductive steps
which
are claimed to follow by irrefutable logic from their
respective premises.
After some hesitation between two inviting
paths, I have come to the
conclusion that the Appellant's
arguments are vitiated by the fact that their
reasoning contains
an engaging but considerable fallacy. It seeks to revive
in an
elegant new form tine rejected proposition that a squatter becomes
in
some way the successor to the title of the dispossessed owner.
It is
necessary to start, I think, by recalling the principle that
defines
a squatter's rights. He is not at any stage of his
possession a successor to
the title of the man he has
dispossessed. He comes in and remains in
always by right of
possession, which in due course becomes incapable of
disturbance
as time exhausts the one or more periods allowed by statute
for
successful intervention. His title, therefore, is never derived
through
but arises always in spite of the dispossessed owner. At
one time during
the 19th century it was thought that section 34 of
the Act of 1833 had
done more than this and effected a statutory
transfer of title from dispossessed
to dispossessor at the
expiration of the limitation period. There were eminent
authorities
who spoke of the law in just these terms. But the decision of
the
Court of Appeal in 1892 in Tichborne v. Weir, 67 L.T.
735, put an end
to this line of reasoning by holding that a
squatter who dispossessed a
lessee and " extinguished "
his title by the requisite period of occupation
did not become
liable in covenant to the lessee's landlord by virtue of any
privity
of estate. The point was fully considered by the members of
the
Court, and they unanimously rejected the idea that the effect
of the limita-
tion statute was to make a " Parliamentary
conveyance " of the dispossessed
lessee's title or estate to
the dispossessing squatter.
In my
opinion this principle has been settled law since the date of
that
decision. It formed the basis of the later decision of the
Divisional Count
in Taylor v. Twinberrow [1930] 2
K.B. 16, in which it was most clearly
explained by Scrutton, L.J.
that it was a misunderstanding of the legal
effect of 12 years
adverse possession under the Limitation Acts to treat it
as if it
gave a title whereas its effect is " merely negative " and,
where the
possession had been against a tenant, its only operation
was to bar his right
to claim against the man in possession (see
loc. cit. p. 23). I think that
this statement needs only one
qualification: a squatter does in the end get a
title by his
possession and the indirect operation of the Act and he can convey
a
fee simple.
If
this principle is applied, as it must be, to the Appellant's
situation,
it appears that the adverse possession completed in
1932 against the lessee
of No. 315 did not transfer to him either
the lessee's' term or his rights
against or has obligations to the
landlord who held the reversion. The
appellant claims to be
entitled to keep the landlord at bay until the expira-
tion of the
term by effluxion of time in 1992: but, if he is, it cannot
be
because he is the transferee or holder of the term which was
granted to
the lessee. He is in possession by his own right, so
far as it is a right:
and it is a right so far as the statutes of
limitation which govern the
matter prescribe both when the rights
to dispossess him are to be treated
as accruing and when, having
accrued, they are thereafter to be treated as
barred. In other
words, a squatter has as much protection as but no more
protection
than the statutes allow: but he has not the title or estate of
the
owner or owners whom he has dispossessed nor has he in any
relevant
sense an estate " commensurate with " the
estate of the dispossessed. All
that this misleading phrase can
mean is that, since his possession only defeats
the rights of
those to whom it has been adverse, there may be rights
3
not
prescribed against, such, for instance, as equitable easements, which
axe
no less enforceable against him in respect of the land than
they would have
been against the owners he has dispossessed.
No one
supposes that adverse possession against a lessee during his term
is
itself adverse possession against his landlord. It is necessary,
therefore,
to see what provision the limitation statutes have made
for the accrual
of a landlord's right to make his entry against a
squatter on demised land.
Until 1939 there is no doubt, I think,
that the general provision about the
landlord (there were special
sections for special cases) was to be found in
section 2 of the
Real Property Limitation Act, 1874, and that the landlord
was to
be regarded as having for this purpose "an estate or interest
in
" reversion or remainder ". It has long been common
to speak of a landlord
as having a reversion expectant upon the
determination of a term of years,
and as early as the case of Doe
d. Davy v. Oxenham (1840) 7 M. & W. 131, he
had
been treated as having an estate "in remainder" and as
falling within
the corresponding but earlier provisions of the
Real Property Limitation
Act 1833. It is true that in Wakefield
and Barnsley Union Bank Ltd. v.
Yates [1916] 1 Ch. 452
both Lord Cozens-Hardy, M.R., and Warrington, L.J.
were at pains
to point out in relation to section 3 of the 1833 Act that an
estate
in fee subject to a lease is an estate in possession, not an estate
in
remainder or reversion. And so in many senses it is: but I
think that in
stating their proposition in such an unqualified
form they were to some
extent seduced by the vigour of language
and clarity of thought that dis-
tinguishes Mr. Challis's book on
the Law of Real Property. In my opinion,
both for the purposes of
section 2 of the Real Property Limitation Act, 1874,
and for the
purposes of section 6 (1) of the Limitation Act, 1939, which
has
taken the place of the relevant portion of that section, an
owner in fee
simple subject to a term of years has an estate or
interest in reversion or
remainder and, consequently, his right of
action against a squatter on the
demised land is to be deemed to
have accrued at the date when the preceding
estate or interest
represented by the term determines in such manner that his
estate
or interest falls into possession. It is, therefore, vital to the
decision
of this case to make up one's mind at what date the lease
which preceded
the Respondents' fee simple interest and so their
right to possession is to be
treated as determining.
In the
ordinary way one would regard a lease or tenancy as being
deter-
minable by effluxion of time, by notice, by forfeiture on
breach of condition
or by surrender. Ostensibly the lease of No.
315, including the site of the
shed, was determined by the
surrender in December, 1959, and upon that
event, one would say.
the fee simple owner's right to possession of the
demised property
accrued. According to the Appellant's argument, however,
the
surrender was ineffective in law to determine the lease so far as it
extended
to the site of the shed because by virtue of section 34
of the Limitation Act
of 1833 the lessee's right and title to that
part of the demised premises was
" extinguished " upon
the barring of his right to dispossess the squatter: and,
if his
right and title had been thus extinguished in 1932, he had nothing
by
way of title that he could pass to the landlord by his
ostensible surrender.
Nemo dot quod non habet. That is the
argument and line of reasoning that
prevailed with a Divisional
Count in Walter v. Yalden [1902] K.B. 304, and
it
assumes that it is correct to apply that general and probably
unimpeachable
proposition to the circumstances of the present
case.
It becomes
necessary, therefore, to determine what is meant by this
phrase,
which in section 34 of the 1833 Act runs: "at the
determination of the
period limited by this Act to any person for
making an entry or distress, or
bringing . . . any action or suit,
the right and title of such person to the land,
rent or advowson,
for the recovery whereof such entry, distress, action or
suit
respectively might have been made or brought within such period,
shall be
extinguished ", and in section 16 of the Limitation
Act, 1939, runs: "... 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 ". On one view, which seems not an implausible one
having
regard to the structure of the respective sections, the
right or title extinguished
is coterminous with the right of
action the barring of which is the occasion
4
of the
extinguishment. This would mean that, when a squatter dispossesses
a
lessee for the statutory period, it is the lessee's right and
title as against the
squatter that is finally destroyed but not
his right or title as against persons
who are not or do not take
through the adverse possessor. On the other
view, that upon which
the Appellant's case depends, the lessee's right and,
title to the
premises becomes extinguished for all purposes and in all
rela-
tions, so that as between himself and the lessor, for
instance, he has thereafter
no estate or interest in the land
demised.
My Lords,
I think that even at first impression I should have been inclined
to
favour the former of these two possible interpretations as being more
con-
sistent with the apparent purpose of the Limitation Acts. But
the major
difficulty that I see in considering the adoption of the
second alternative is
that its logical application is very
far-reaching indeed, much more far-reaching
than is convenient for
the Appellant's argument, and would produce
situations that would
seem to me neither reasonable nor just. First, if the
lessee's
estate or right or title or interest—I do not believe that
there is any
useful distinction between these words in this
connection—is really extin-
guished as against his landlord,
I see no escape from the conclusion that the
landlord's right to
possession against the squatter accrues upon that event.
The
squatter has not got the lessee's term or estate and there is nothing
between
the fee simple owner and the man in possession. In the
terms of this case,
the landlord's right of action would have
accrued in 1932 and become barred
for good in 1944: and this,
although the lessee was continuing throughout
the period to pay
the rent under the lease and, for all that appears, the
landlord
had neither means of knowing nor reason to know that dispossession
of
part of the premises had taken place or that time was running
against
him. This seems quite wrong; yet if the lessee's estate
was extinguished for
all purposes it must also have "
determined " at the same time within the
meaning of section 2
of the 1874 Act and section 6 (1) of the 1939 Act.
This situation,
manifestly unjust, could occur whenever there is current a
long
term of years and there have been 12 years or more of adverse
possession
of a portion or even the whole of the demised premises
during the currency
of the term. It is to be noted that the
expiration by efftuxion of time of the
term granted by the lease
ceases to be of any significance, once the Appellant's
conception
is accepted, for in respect of the premises the title to which
was
previously extinguished no estate or interest exists which can
then expire.
The
difficulties of such an interpretation stretch out further. If the
lessee's
estate or title is destroyed for all purposes, there
disappears with it any
privity of estate between him and the
landlord. If privity of estate is gone
so are gone the covenants
on the part of the lessee which depend on such
privity: if the
current lessee is an assignee of the lease, as he is likely to be
if
the term in question is a long term of years, the landlord will find
himself
deprived by the act of the Legislature of the right to
enforce in respect of the
squatter's portion of the land a set of
covenants of value to him and he will
have been so deprived
without compensation or any necessary notice that the
event that
brings it about has in fact 'taken place. The squatter himself,
on
the other hand, is entitled to remain in possession as against
the landlord
without personal liability for rent or convenant. It
seems a strange statutory
scheme.
Then there
is the question of forfeiture. The Appellant's argument, I
think,
included the proposition that, if he does not take the
incautious step of accept-
ing a surrender, the landlord could
achieve a forfeiture on breach of condition
and under it enter on
the squatter's land. But I have not been able to see how
this can
be. A condition, the breach of which justifies a forfeiture or
re-entry,
must be attached to the estate the grant of which
imposes the condition ; and
if a statute has itself wiped out or
destroyed the estate, so that the squatter
is in possession by a
different title derived aliunde, I cannot see how the
land-
lord can any longer rely upon the condition or forfeit an
interest which has
ceased to exist.
I (think,
therefore, that it is a false approach to the provisions of
the
Limitation Acts to regard the " extinguishment of title "
as exitinguishing more
than the title of the dispossessed against
the dispossessor. Where the person
dispossessed is a lessee, I do
not think it right to try to build legal conclusions
on the
assumption that the nexus between him and his lessor has been
5
destroyed;
or, consequently, that, once adverse possession has been com-
pleted,
he ceases to hold the term of years and estate in it granted to
him
by his lessor. If I may express my point of view by an
illustration which was
propounded during the course of the
argument, if after 12 years adverse
possession a squatter vacates
the premises and leaves the possession vacant.
would it be the
lessee or his lessor who would have the better right to
possession
as between themselves? Of course, the answer begs the
question,
because the answer one gives depends on the view of the
law one takes; but I
think that it would be very difficult for
anyone to reply that during the
remainder of the term the landlord
could exclude the lessee. If he cannot
it shows that, as against
him, the lessee still holds the estate granted and it has
not been
extinguished for all purposes. But, if he can, it can only be
because
the landlord enjoys a present right of possession and this
view brings in again
the former difficulty that his right of
action against the squatter must then
have accrued as soon as the
12 years adverse possession against the lessee
had completed the
ouster of the latter.
I
conclude, therefore, that the effect of the " extinguishment"
sections of
the Limitation Acts is not to destroy the lessee's
estate as between himself
and the lessor; and that it would be
incorrect to say that if he offers a
surrender to the lessor he
has nothing to surrender to him in respect of the
land in the
possession of the squatter. Nemo dot quod non habet, and
I
dare say that he does not, but, as Pearson, L.J. indicated in
the Court of
Appeal, the question here is not whether there are
any exceptions from that
general principle but whether, as a
principle, it is relevant to the situation
that we have here. In
my opinion it is not.
What the
lessee surrendered in this case was the encumbrance on the
fee
simple in possession which was represented by the term of years. It
was
that encumbrance and nothing else, I think, which until then
prevented the
fee simple owner from asserting a claim to
possession against the squatter.
This is clear, if one assumes
claims made at three successive points of time and
asks what the
defence to them would be. If the fee simple owner claimed
possession
against the squatter before his adverse possession against the
lessee
had been completed, I do not see what defence would be open
to the squatter
except that the outstanding term of years
prevented the landlord from having
a present title to possession.
He would defend himself by alleging the
grant to the lessee.
Secondly, if the landlord came against him after he
had enjoyed
his 12 years adverse possession against the lessee, his defence
would
have to be the same, for otherwise the landlord would have a
present
and unbarred right to possession. Yet this would be after
the limitation
statute had extinguished the lessee's title. Now,
thirdly, if the landlord
then goes to the lessee and gets him to
surrender the outstanding term,
which encumbers his fee simple in
possession, then the squatter's defence
against the landlord
disappears and, since he has not completed adverse
possession
against the landlord, he must give up to the rightful owner's
claim
to the land. That is the situation that we have here.
This
appeal then requires a choice between two decisions that have
hitherto
ranked as of equal authority, Walter v. Yalden
[1902] 2 KB 304 and Taylor
v. Twinberrow [1930]
2 K.B. 16. Each was decided by a Divisional Court,
one sixty
yea-re, the other thirty years ago. I regard their decisions
as
inconsistent with each other, since the lines of distinction
suggested in the
later case (more out of propriety than
conviction, I think) are not capable
of supporting a relevant
difference. It cannot really matter whether the
squatter is being
attacked by a landlord who has taken a surrender of a
lease or by
a lessee who has taken a conveyance of the fee simple : nor
can it
matter whether the interest defeated by adverse possession is a
fixed
term of years or a tenancy from year to year. In my opinion,
Waller
v. Yalden (supra) was wrongly decided, since
it depends on what I regard
as the mistaken idea that the squatter
can defend his possession against the
fee simple owner even though
he is not entitled to and has no interest in
the intervening term
of years.
We have
been in a little difficulty over a point that was argued for
the
Appellant with regard to the operation of section 75 of the
Land Registra-
tion Act, 1925, because, although his Counsel was
able to take this point
in the Court of Appeal despite the fact
that it was not raised in the County
6
Court, he
was refused leave to adduce further evidence bearing upon it.
The
result is that neither that Court nor this House had available
enough of the
facts to know whether the point had any actual
bearing upon the case
or not. As I think that the true meaning of
section 75 (1) is not at all
easy to discover and may have to be
fully considered on some other occasion,
I think it best on this
occasion to say as little about it as possible.
Briefly,
section 75 (1) appears to set out with the purpose of applying
the
Limitation Acts and therefore the statutory consequences of
adverse
possession to registered land, but then goes on to provide
that where the
estate of a person registered as proprietor would
be extinguished, " such
" estate shall not be
extinguished but shall be deemed to be held by the
"
proprietor for the time being in trust for the person who . . . has
acquired
" title against any proprietor ". It therefore
succeeds in making a provision
at the end of the subsection which
is wholly inconsistent with the con-
ceptions of the limitation
Acts as previously understood and achieves just
that "
Parliamentary conveyance" (through the medium of trustee
and
cestui que trust) which was denied by the decision in
Tichborne v. Weir
supra. It would certainly be very
satisfactory for the appellant if this is
what the 1925 Act has
really done, because it would give him just that
beneficial
interest in the lessee's term which, in my view, he lacks under
the
Limitation Acts themselves.
But.
although it is known from the Land Registry that the lease had
been
entered on the Charges Register as an incumbrance on the
Absolute Title
and the entry of it had later been cancelled,
presumably after the surrender,
there is no evidence to show at
what date the lessee himself had thus come
upon the Register as a
" proprietor". As " proprietor" in the Act
is
defined as meaning " registered proprietor ", it is
pointed out that it is impos-
sible on the evidence to say whether
or not the lessee was a registered
proprietor at the date when the
Act came into force, or for that matter
was a registered
proprietor at the date when adverse possession was
completed.
The Court
of Appeal were unanimous in holding that this uncertainty by
itself
was fatal to the success of the Appellant's argument, since, to use
the
words of Holroyd Pearce, L.J : " Section 75(1) clearly
deals with the future,
" not the past ". He said that,
had the Appellant's counsel been able to
establish by evidence
that the leasehold title was registered before the Act
came into
force, his point might well have had weight. My Lords, I agree
with
this view in the sense that I regard section 75 (1) as operating
only
upon events occurring after the Act came into force, and if
the Limitation
Acts effected extinguishment at a date when the
lessee was not a registered
proprietor, the subsection would not
operate.
I do not
think, therefore, that the Appellant can succeed on this point.
I
only wish to add that at present I am not at all satisfied that
section 75 (1)
does create a trust interest in the squatter of the
kind that one would expect
from the words used. So to hold would
raise difficulties which I do not now
explore; and the trust of
the dispossessed owner's title under subsection (1)
must somehow
be reconciled with the provision under subsection (2) for
the
squatter to apply to register his own title, which would
presumably be his
independent possessory title acquired by the
adverse possession.
For the
reasons that I have given I think that the appeal ought to
be
dismissed.
My Lords,
my noble and learned friend, Lord Guest, who is not able to
be
here today, has asked me to say that he has read my Opinion
and
concurs in it.
Lord Denning
my lords,
At the
back of a leasehold house in Hampstead there is a shed. In the
year
1920 the next door neighbour, Mr. Millwood, saw it was unused and
out
of repair. He went in and repaired it and has treated it as his own
ever
7
since. Mr.
Millwood has actually sublet it as part of his own house. Now
a
property company has bought the freehold of the property on which
the
shed stands and wants to recover possession of the shed. Can
it do so, or is
it barred by the statutes of limitation?
There are three important persons to consider:
(1) The
freeholder who in 1893 let the premises on which the
shed
stands on a lease for 99 years at a ground rent with a
repairing covenant
and a proviso for re-entry. The 99 years will
not expire till 1992.
The
leaseholder who has token no steps for more than 12 years
to
recover possession of the shed which stands on part of his
leasehold
premises. His right of action first accrued in 1920.
So the 12 years
for him to sue expired in 1932.
The
squatter who has been in possession of the shed since
1920,
by himself or his subtenants.
And there is one important event to consider:
The
surrender in 1959 by the leaseholder to the freeholder
of 'the rest of
the term of 99 years. Whereupon the freeholder
claims that he is entitled
to possession of the shed. But the
squatter says he is entitled to stay in it
until 1992.
It is
quite clear from the statutes of limitation that in the year 1932
the
" title " of the leaseholder to the land was "
extinguished ". What does this
mean? There are four
suggestions to consider.
The first
suggestion is that the title of the leaseholder to the shed
is
extinguished completely, not only against the squatter, but
also against the
freeholder. So that the leasehold interest
disappears altogether, and the
freeholder becomes entitled to the
land. I reject this suggestion completely.
It would mean in this
case that the freeholder would have become entitled
to possession
of the shed in the year 1932 and time would have begun to run
against
him from 1932. So that 12 years later the title of the freeholder
to
the shed would have been extinguished, that is, in 1944. That
cannot
be right. And it was not seriously suggested. In 99 cases
out of 100,
the freeholder has no knowledge that the squatter is
on the premises at
all. It would be utterly wrong if the title of
the freeholder could be eroded
away during the lease without his
knowledge. The correct view is that the
freehold is an estate in
reversion within section 6 (1) of the 1939 Act and time
does not
run against the freeholder until the determination of the lease,
see
Doe d. Davy v. Oxenham (1840) 7 M. & W. 131.
The second
suggestion is that the title of 'the leaseholder to the shed
is
extinguished so far as the leaseholder is concerned—so
that he is no longer
entitled to the shed—but that the
leasehold interest itself persists and is
vested in the squatter.
In other words, the squatter acquired a title which is
"
commensurate " with the leasehold interest which has been
extinguished.
This suggestion was made in 1867 in the first
edition of Darby and Bosanquet's
book at p. 390 and it was
accepted in 1888 as correct by the Court in
Ireland in Rankin
v. McMurtry (1889) 24 L.R. Irish (Q.B.) 290. But it
has
since been disapproved. If it were correct, it would mean that
the squatter
would be in the position of a statutory assignee of
the shed, and he would
by reason of privity of estate, be liable
on the covenants and subject to the
conditions of the lease. I
reject this suggestion also: for the simple reason
that the
operation of the statutes of limitation is merely negative. It
destroys
the leaseholder's title to the land but does not vest it
in the squatter. The
squatter is not liable on the repairing
covenants, see Tichborne v. Weir
(1892) 67 L.T. 735.
Nor, when the leasehold is a tenancy from year to year,
does he
step into the shoes of the tenant so as to be himself entitled to
six
months' notice to quit, see Taylor v. Twinberrow
[1930] 2 K.B. 16.
The third
suggestion is that the title of the leaseholder is
extinguished
but that his estate in the land is not. This
is too fine a distinction for me.
And so it was for Parliament.
For Parliament itself uses the two words as
if they meant the
same. See section 16 of the Limitation Act, 1939, and
section 75
of the Land Registration Act, 1925.
8
The fourth
suggestion is that the title of the leaseholder to the shed
is
extinguished as against the squatter, but remains good
as against the free-
holder. This seems to me the only
acceptable suggestion. If it is adopted,
it means that time does
not run against the freeholder until the lease is
determined—which
is only just. It also means that until that time the
freeholder
has his remedy against the leaseholder in the covenants, as he
should
have; and can also re-enter for forfeiture, as he should be able to
do,
see Humphry v. Damion (1612) Cro. Jac. 300, and
can give notice to deter-
mine on a " break " clause or
notice to quit, as the case may be. Further,
it means that if the
leaseholder should be able to induce the squatter to leave
the
shed—or if the squatter quits and the leaseholder resumes
possession
the leaseholder is at once in the same position as he
was originally, being
entitled to the benefits and subject to the
burdens of the lease in regard to
the shed. All this seems to me
eminently reasonable, but it can only be
achieved if, despite the
presence of the squatter, the title of the leaseholder
remains
good as against the freeholder.
On this
footing it is quite apparent that at the date of the surrender,
the
leaseholder had something to surrender. He still had his title
to the shed
as against the freeholder and was in a position to
surrender it to him. The
maxim nemo dat quod non habet has
no application to the case at all.
But there
still remains the question: What was the effect of the
surrender?
There are here two alternatives open :
On the
one hand, it may be said that the surrender operated to
determine
the term, just as a forfeiture does. If this is correct, it
would
mean that the freeholder would be entitled to possession at
once as soon
as the leaseholder surrendered the house. He could
evict the squatter
by virtue of his freehold estate against which
the squatter could say
nothing. And time would begin to run
against the freeholder as soon
as the surrender took place.
This view is based on Ecclesiastical Com-
missioners of
England and Wales v. Rowe (1880) 5 App. Cas. 736
and
section 6 (1) of the Limitation Act, 1939.
On the
other hand, it may be said that the surrender operated as
an
assignment by the leaseholder to the freeholder of the rest
of the
99 years. If this is correct, it would mean that the
freeholder could not
evict the squatter because the freeholder
would be " claiming through "
the leaseholder and would
be barred for the rest of the 99 years, just
as the leaseholder
would be, see section 4 (3) of the Limitation Act.
Time would not
begin to run against the freeholder until the 99 years
expired.
This view is based on Walter v. Yalden [1902] 2 KB 304.
My Lords,
I have come to the clear conclusion that a surrender operates
as a
determination of the term. It is not an assignment of it. I am
aware
that no less an authority than Lindley, L.J. once said that
" the surrender of
" the term only operated as an
assignment of the surrenderor's interest in it",
see David
v. Sabin [1893] 1 Ch. at p. 533. But if that be true, it
is not by
any rule of the common law, only by force of statute:
and then only in the
case of underleases, not in the case of
trespasser or squatter.
At common
law if a leaseholder made an underlease and afterwards
surrendered
his term to the freeholder, then the freeholder could not evict
the
underlessee during the term of the underlease, see Pleasant
(Lessee of
Hayton) v. Benson (1811) 14 East 234. But
this was not because
there was any assignment from surrenderer to
surrenderee. It is clear that,
upon the surrender, the head term
was determined altogether. It was extin-
guished completely, so
much so that the freeholder could not sue the under-
lessee on the
covenants or enforce the proviso for re-entry, see Webb v.
Russell
(1789) 3 T.R. 393. The underlessee could enjoy the
property without pay-
ment of rent and without performance of the
covenants and conditions until
the end of the term of the
underlease, see Ecclesiastical Commissioners for
England v.
Treemer [1893] 1 Ch, at p. 174. This was remedied by the
statutes
of 1740 and 1845 which have been re-enacted in sections
139 and 150 of
the Law of Property Act, 1925. Under those
statutes, on a surrender of
the head lease, an underlessee becomes
a direct tenant of the freeholder on
9
the terms
of his underlease. So that the surrender does operate as if it
were
an assignment of the surrenderor's interest. But those
statutes have no appli-
cation to trespassers or squatters.
The
question may be asked: Why did the common law on a surrender
protect
the underlessee from eviction? The answer is to be found in Coke
on
Littleton II p. 338, where it is said that "having regard to the
parties
" to the surrender, the estate is absolutely drowned
. . . But having regard to
" strangers, who were not parties
or privies thereunto, lest by a voluntary
" surrender they
may receive prejudice touching any right or interest they
"
had before the surrender, the estate surrendered hath in
consideration of
" law a continuance". This passage
applies in favour of an underlessee
so as to protect him from
eviction during the term of his underlease: but
it does not apply
in favour of a trespasser. The reason for the difference is
because
the underlessee comes in under a grant from the lessee ; and the
lessee
cannot, toy a surrender, derogate from his own grant, see
Davenport's case
(1608) 8 Co. Rep. 144b, Mellor v.
Watkins (1874) L.R. 9 Q.B. at p. 345
by Blackburn, J. But a
trespasser comes in by wrong and not by grant of
the lessee. If
the lessee surrenders his term, the freeholder is at once entitled
to
evict the trespasser for the simple reason that, on the surrender,
the lease
is determined, and there is no bar whatever to the
freeholder recovering
possession, see Ecclesiastical
Commissioners of England and Wales v. Rowe
(1880) 5
App. Cas. 736. And I see no reason why the same reasoning should
not
apply even though, at the date of the surrender, the trespasser is
a
squatter who has been there more than 12 years or, as against
the freeholder,
he is still a trespasser. The freeholder's right
to possession does not arise
until the lease is determined by the
surrender. It then comes into being
and time begins to run against
him under section 6 (1) of the Limitation
Act, 1939.
The only
reason, it seems to me, which can be urged against this conclusion
is
that it means that a squatter's title can be destroyed by the
leaseholder and
freeholder putting their heads together. It is
said that they can by a surrender
—or by a surrender and
regrant—destroy the squatter's title completely
and get rid
of him. So be it. There is no way of preventing it. But I would
point
out that, if we were to deny the two of them this right, they
could
achieve the same result in another way. They could easily do
it by the
leaseholder submitting to a forfeiture. If the
leaseholder chooses not to
pay the rent, the freeholder can
determine the lease under the proviso for
re-entry. The squatter
cannot stop him. He cannot pay the rent without
the authority of
the leaseholder. He cannot apply for relief against forfeiture.
The
squatter's title can thus be defeated by a forfeiture—or by a
forfeiture
and regrant—just as it can by a surrender—or
by a surrender and regrant.
So there is nothing in the point.
My Lords,
so far as these questions under the Limitation Acts are con-
cerned,
I must say that I see no difference between a surrender or merger
or
a forfeiture. On each of those events the lease is determined
and the free-
holder is entitled to evict the squatter, even
though the squatter has been on
the land during the lease for more
than twelve years: and on the determina-
tion of the lease, time
then begins to run against the freeholder. It follows
that, in my
opinion, Walter v. Yalden was wrongly decided and
Taylor v.
Twinberrow was rightly decided.
One word
about section 75 (1) of the Land Registration Act, 1925. That
point
was not raised in the County Court and its availability depends
on
facts which were not proved. I do not think it is open to the
Appellant here.
But in any case I doubt if .that puts registered
land on a very different footing
from unregistered land. It is
machinery so as to apply the Limitation Acts to
registered land,
but it does not alter the substantive position very materially.
The
registered leaseholder clearly remains liable on the covenants and
sub-
ject to the conditions of the lease, including the proviso
for re-entry: and I
do not see why, on a surrender, the freeholder
should not recover possession
from a squatter, just as he can on a
forfeiture. The freeholder has no notice
of the trust in favour of
the squatter and his interests are not to be prejudiced
by the
fact that the leasehold is registered. I say no more because
the
point is not available here. Suffice it to say that for the
reasons I have given,
I would dismiss this appeal.
10
Lord Morris of Borth-y-Gest
my lords,
The
question which arises in this appeal is whether the plaintiffs
were
entitled to possession of that .part of the shed which is on
the land of No. 315.
The plaintiffs acquired the freehold of No.
315 in February, 1959. They
acquired it subject to the subsisting
lease. That was a lease dated the 26th
April, 1894. It was for a
term of 99 years which would expire in 1992. From
1920 onwards
there had been continuous possession of the shed which was
adverse
to the rights of the lessee of No. 315. After 1932 the lessee was
not
entitled to eject Millwood from the shed. Nor thereafter could
he eject either
Pliska or the defendant (Fairweather). The
plaintiffs do not suggest that
the previous freeholder could in
1932 have ejected Millwood. Nor do they
suggest that the
acquisition by them of the freehold in February, 1959, gave
them
at that time the right to possession of the part of the shed which is
on
No 315. Why, then, were they entitled to such possession in
August, 1960,
at which date they took proceedings in the County
Court? The only basis
for such entitlement which is asserted is
that the plaintiffs after acquiring the
freehold of No. 315 took
in December, 1959, what has been called a surrender
of the lease
of No. 315. The result, it is asserted, is that though the
surrenderor
could not have ejected the defendant the surrenderors
(the plaintiffs) could
do so. This means that though the lessees
could not have ejected the
defendant and though the plaintiffs
could not have ejected the defendant,
yet the lessees and the
plaintiffs could make some agreement between them-
selves or come
to some arrangement as a result of which there arose in
the
plaintiffs a right to eject the defendant. This would seem
surprising.
The
plaintiffs as the successors of the previous freeholder and
lesser
became entitled to have possession of No. 315 on the expiry
of the term of
the lease. They also had a right of re-entry if
occasion for a forfeiture
arose. Under the terms of the lease the
lessee had covenanted that at
the expiration or sooner
determination of the term he would peaceably
surrender and yield
up the demised premises. At the time when the
plaintiffs claimed
possession in the County Court the term of the lease had
not
expired and there had been no forfeiture. The plaintiffs were
only
entitled to possession if the lessees had peaceably
surrendered and yielded
up the demised premises. They relied upon
the Deed of Surrender dated
the 14th December, 1959, which was
intended to be supplemental to the
lease of the 26th April, 1894.
The Deed recited that by virtue of divers
mesne assignments acts
in law and events the lease was then vested for the
residue of the
term in the persons described in the Deed as the lessees: it
further
recited that the reversion immediately expectant on the
termination
of the lease was vested in the plaintiffs who were
described as the
" reversioner " The Deed then provided:
" In consideration of the sum
" of one thousand eight
hundred and seventy-five pounds paid by the rever-
" sioner
to the lessees (the receipt whereof the lessees hereby acknowledge)
"
and of the release hereinafter contained the lessees as trustees
hereby
" convey surrender and yield up to the reversioner All
and Singular the
" premises demised by the Lease subject to
and with the benefit of the
" tenancies mentioned in the
Schedule hereto To the Intent that the term
" of years
granted by the Lease may merge and be extinguished in the
"reversion
expectant thereof." There followed a release of the lessees
from
all liability claims and demands in respect of the rent reserved by
or
any breach of the covenants contained in or otherwise arising
under the lease.
There was also a schedule of the tenancies
referred to.
If the
lessees were not entitled to possession of one part of No. 315
(that
is, the part on which the shed stood) how could they yield
up possession
of that part to the plaintiffs? If the plaintiffs
were not entitled to eject the
defendant before the deed and if
equally the lessees were not entitled to eject
the defendant
before the deed, how does the deed give or how could the
lessees
give to the plaintiffs a right to eject the defendant?
When a
lessor grants a lease to a lessee for a term of years the lessee
is
given a right to possession during the term. The lessee will
have a right to
possession for the period of the term which will
be effective as against his
11
lessor and
as against everyone else. If thereafter the lessee wishes during
the
term to place the lessor in the position of having a right to
possession as
against everyone he does not do this merely by
abandoning any such right
to possession as against the lessor as
might be thought to exist: he must also
be in a position to cede
to the lessor rights to possession as against everyone
else—which
was one part of what he had obtained from the lessor. If,
however,
he has lost all his rights to possession how can he reinvest his
lessor
with any of them? Unless he is in a position to transfer
those rights to his
lessor the lessor must wait until he acquires
such rights in some other way.
If it can be said in a case where a
squatter has during a lease remained in
possession for the
statutory period that the lessee has merely lost his right
to
possession vis-a-vis the squatter, how can his give his lessor
a right to posses-
sion against such squatter?
In the
present case the Deed of Surrender of the 14th December,
1959,
involved that, subject to the tenancies mentioned in the
schedule, the right
to possession of the demised premises was to
be given by the lessees to the
plaintiffs. As the lessees had not
got possession or the right to possession
of that part of No. 315
on which the shed stood and as they did not obtain
such possession
or the right to it they were not able to give such possession
to
the plaintiffs. It follows, in my view, that the plaintiffs could not
show
that they had any right to eject the defendant.
My Lords,
if authority is needed to support this view it is to be found in
the
decision in Walter v. Yalden [1902] 2 KB 304—a
decision which has
stood for nearly 60 years. Channel, J.
expressed the matter clearly when
he said (see p. 310) that a
lessee "cannot convey to his landlord, any more
" than
to anyone else, anything that he has not got himself ". In
that case
there was a letting of certain premises on the 7th
February, 1837. It was for
a term of 99 years if three named
persons " shall so long live ". Before
the year 1885
the lessees had lost their title. This was because certain
persons
had been in possession of the land. By an indenture in
1885 made between
one Pothecary as sole surviving executor of the
survivor of the lessees and
Walter, who was entitled to the fee
simple, it was witnessed that Pothecary,
so far as he could or
lawfully might, surrendered to Walter all the premises
demised by
the lease to the intent that the residue of the term of years and
all
the estate and interest of Pothecary as personal representative might
be
merged and extinguished in the reversion and inheritance of the
premises.
Walter died in 1894 and the plaintiff was his successor
in title. In 1895 the
last of the three lives, for which the
lease of 1837 had been granted, came to
an end. In 1902 the
plaintiff claimed possession from the defendant who had
taken a
conveyance of the premises from one Watts in 1867 and had since
then
remained in possession. The premises were described in the
conveyance
as having been for the previous thirteen years in the
occupation of Watts and
before then for eleven years in the
occupation of one Fulker from whom
Watts obtained possession.
On behalf of the defendant it was contended
that when
Walter accepted a surrender in 1885 he acquired an immediate
right
of re-entry and that as the claim for possession had not been
brought
within 12 years from that date the claim was barred. On
behalf of the
plaintiff it was contended that time only began to
run in 1895 and accordingly
that the plaintiff's claim was not
barred. The plaintiff succeeded. Lord
Alverstone, C.J. said
.that the surrender could not operate to defeat the
defendant.
Channel, J. said (see p. 310) that " inasmuch as in 1885
Pothecary
" had lost all title as against the persons in
possession of this particular
" land, he could not have
assigned a right of entry to anybody else, and no
" more
could he assign it to his lessor. The result is that a right of
entry
" did not arise in the lessor at the date of the
surrender, but only when the
" last life dropped on January
5,1895."
The
plaintiffs in the present case had a superior or paramount title
which
would enable them to resume possession of No. 315 on the
expiration of the
term of the lease. The adverse possession of
Millwood and others after
1920 of a part of No. 315 could not
interfere with the plantiffs' right to
possession at such time.
Nor could the adverse possession interfere with
the contractual
provisions of the lease of No. 315 or debar the plaintiffs
12
from
claiming a forfeiture or from exercising any right of re-entry.
The
plaintiffs do not assert that their claim to possession in the
action rested
upon any provision in the lease of No. 315: there
was no forfeiture and no
exercise of any right of re-entry. It
seems to me that the so-called surrender
gave to the plantiffs no
right of action for possession of the part of No. 315
because the
lessees could not yield to the plaintiffs something (that is, a
right
to possession) which they had not got.
My Lords,
this, as it seems to me, is the conclusion to which the reasoning
of
the matter points: it seems to me further that the contrary
conclusion
is undesirable. I see no reason why Coke's statement
(see Coke on Littleton
p. 338b) that " having regard to the
parties to the surrender the estate is
" absolutely drowned .
. . But having regard to strangers, who were not
" parties or
privies thereunto, lest by a voluntary surrender they may receive
"
prejudice touching any right or interest they had before the
surrender,
" the estate surrendered hath in consideration of
law a continuance " should
not embrace the situation where an
adverse possessor has remained in
possession for the period
specified by statute. If a lessee who has lawfully
assigned or
sublet cannot by a surrender affect the rights of assignees
or
sublessees, I do not see why a surrender should endow a lessor
with a right
against an adverse possessor which was not possessed
by the lessee. Further-
more, it is to be observed that the
protection which is given by the Limitation
Act, 1939, to an
adverse possessor is recognised in the Land Registration
Act,
1925. He is enabled in the case of a registered estate to be
registered
as proprietor thereof. Section 75 (2) of the Land
Registration Act, 1925,
provides that—" Any person
claiming to have acquired a title under the
" Limitation Acts
to a registered estate in the land may apply to be registered
"
as proprietor thereof ".
It is provided by section 6 (1) of the Limitation Act, 1939, as follows: —
"6.—(1)
Subject as hereafter in this section provided, the right of
"
action to recover any land shall, in a case where the estate or
interest
" claimed was an estate or interest in reversion or
remainder or any other
" future estate or interest and no
person has taken possession of the
" land by virtue of the
estate or interest claimed, be deemed to have
" accrued on
the date on which 'the estate or interest fell into possession
"
by the determination of the preceding estate or interest."
The
wording of section 6 (2) shows that the preceding estate or interest
may
be a term of years absolute. A lessee's estate or interest
will consist of his
right to possession. A lessor's right to
possession may be regarded as a
future interest. That future
interest may fall into possession by the " deter-
"
mination " of the preceding estate or interest. It seems to me
that there
could be a " determination " other than by
effluxion of time and that the
word could cover a surrender. In
the present case, however, the purported
" surrender",
whatever other effect it may have had, could not in my view,
for
the reasons which I have set out, yield to the plaintiffs a right to
immediate
possession of that small part of No. 315 on which the
shed stood. The
circumstances that only a very small part of No.
315 is involved makes no
difference to the principles which are
involved: if the adverse possession
after 1920 had been of the
whole area of No. 315 the decision of the Court
of Appeal involves
that after a purported " surrender" by disentitled
lessees
the plaintiffs would have been entitled to immediate
possession.
After a
lessor has granted a lease to a lessee for a term of years, the
right
to possession for the duration of the term is the substance
of the lessee's
title, and if anything is gained in this case by
speaking separately of his
estate or interest—of his estate
or interest as well. If a third person trespasses
on the land the
lessee has a right of action to eject him, but at the expiration
of
the period prescribed by Parliament for the bringing of an action
to
recover possession the title of the lessee " to the land "
is extinguished (see
Limitation Act, 1939, section 16, which
replaced section 34 of the Real
Property Limitation Act, 1833.)
There is then no one who can eject the
adverse possessor, and he
has the best right to bring an action against
anyone who in turn
intrudes upon his possession. There is no one with
a better title
to possession until the time arrives when, at the end of the
13
period of
the lease, the lessor is entitled to possession. That does not
mean,
however, that the term is transferred to the adverse
possessor so as to
make him liable on the covenants in the leases
(see Tichborne v. Weir,
67 L.T. 735). Nor does it
mean that the covenants and obligations which
bind the lessee are
affected. The lessee's title or estate or interest (whichever
word
is used) consists of his right to possession. If a squatter remains
in
possession for the statutory period, then the title or estate
or interest of the
lessee is extinguished. But that does not mean
that anything has happened
which relieves the lessee from his
contractual obligations towards his lessor
or which in any way
affects or adds to the pre-existing right of the lessor to
resume
possession when the term of the lease expires. If the
extinguishment
of the lessee's title or estate or interest could
be said to be a " determination "
within section 6 (1)
of the Act of 1939, it would not be a determination which
would
cause the future estate or interest of the lessor to fall into
possession
within the meaning of that subsection. In the absence
of any arrangement
between lessor and lessee the contractual
obligations of the latter would
not only continue but would
continue for the duration of their contractual
period. The adverse
possessor is therefore in peril if circumstances give
occasion for
the exercise by the lessor of a right of forfeiture, and it will
be
for him to ensure that no such occasion arises. In this state
of affairs it
seems to me that whatever a purported surrender by a
lessee whose title
to the land has been extinguished may achieve,
it cannot pass to the lessor
any title to the land: so far as
title to the land is concerned the lessor will
have nothing added
to his pre-existing right which was a right to resume
possession
of the land at the end of the term granted by the lease. I
cannot
find support in the case of Ecclesiastical Commissioners
of England & Wales
v. Rowe (1880) 5 App. Cas. 736
for any contrary view. In that case there
was a surrender by a
lessee to the Dean in 1828 and contemporaneously
the grant of a
new lease. At the time there was a trespasser in occupation.
It
was held that on the surrender a right of action to recover the
premises
accrued to the Dean. In that case, however, at the time
of the surrender
the period of adverse possession had not been
such as to extinguish the
title of the lessee. This distinguishing
feature of that case was put before
the Court by Mr. Buckmaster,
Q.C., in his argument in Walter v. Yalden.
The
majority in the Court of Appeal in the present case were
influenced
by what was referred to as the mechanical difficulty
which it was said may
arise in the case of periodic tenancies. If
there is a tenancy from year to
year and if a squatter retains
adverse possession against the tenant for over
the statutory
period and if thereafter the tenant purchases the
landlord's
reversion (or equally if the tenant purports to
surrender to his landlord)
can the squatter be ejected? In Taylor
v. Twinberrow [1930] 2 K.B. 16 the
facts gave rise to one of
these questions. On the 18th May, 1900, the father
of the
plaintiff became tenant from year to year of a cottage. The
father,
Mr. Taylor, senior, allowed Mr. Twinberrow to occupy rent
free as a tenant
at will. By the combined effect of sections 7 and
34 of the Real Property
Limitation Act, 1833, and section 1 of the
Real Property Limitation Act,
1874, the right and title of Mr.
Taylor, senior, to the cottage became extin-
guished in or about
the year 1913. On the 5th February, 1919, Mr. Taylor,
senior,
bought the freehold of the cottage. In 1925 Mr. Twinberrow died.
The
defendant was his widow. She continued to occupy. In 1928 Mr.
Taylor,
senior, died, having by his will devised 'the cottage to the
plaintiff,
who in 1929 brought an action in the County Court
against Mrs. Twinberrow
claiming possession of the cottage.
Questions arose as to whether the claim
was barred and as to
whether it could be brought in the absence of a
determination of
the yearly tenancy by a notice to quit. The claim to
possession
succeeded and an appeal to the Divisional Court failed. My
Lords,
it seems to me that the result in that case was correct, though I
would
reach that result by a somewhat different process of
reasoning from that
contained in the judgments in the Divisional
Court. I can see no difference
in principle between a case where
there is possession which is adverse to a
tenant who has a lease
for a fixed term and a case where .there is possession
which is
adverse to a tenant from year to year. II a landlord lets from
year
to year and if there is adverse possession for a statutory period
against
14
the
tenant, then the title of the tenant will be extinguished. His
tenancy will,
however, not be transferred to the adverse
possessor. The position will be
that the tenant will have lost the
right to eject the adverse possessor. The
landlord can, however,
give an appropriate notice to quit to his tenant, and
upon its
expiration the landlord will be entitled to possession. What,
then,
is the position if at a time after such tenant has lost his
right to eject an
adverse possessor the tenant acquires the
freehold from his landlord or
alternatively if the tenant purports
to effect a surrender to his landlord?
The result should, I
apprehend, be the same in either of these two eventualities.
My
Lords, though this point does not directly arise in this appeal and
does
not, therefore, call for a final expression of opinion, it
seems to me that
the approach should be the same as in the
situation where a tenant has a
tenancy for a fixed term. If a
tenant from year to year who has lost his
right to eject a
squatter proposes to acquire the freehold reversion he could
acquire
it after his landlord has given him an appropriate notice to quit
or
after he has given an appropriate notice to quit: having
acquired the freehold
the tenant could then eject the squatter
after such notice has expired. If no
notice to quit is given and
the tenant acquires the freehold reversion he will
then possess
the sum of the rights previously possessed by him together
with
those previously possessed by the freehold landlord. If the
landlord
previously had no right to eject the squatter and if the
tenant also had no
such right, I cannot see that any such right
could arise or be created as a
result of the joinder of the rights
possessed by the landlord and the tenant.
It may well be that as
such joinder would obviate any necessity for the
giving of a
notice to quit the result would be that possession could be
obtained
as against the squatter at such date as would have been the end
of
the period of a notice to quit which apart from the merger could
validly
have been given. In Taylor v. Twinberrow the
position would therefore
be that Mr. Taylor, senior, after
acquiring the freehold on the 5th February,
1919, became entitled
to possession after the 18th May, 1920: before the
rights which he
acquired from the freeholder could be extinguished by reason
of
Mrs. Twinberrow's possession time would have to run from such
latter
date. As the action for possession was brought on the 24th
October, 1929,
time had not run.
If there
is a lease for a term of years with an option to determine
before
such term expires and if a squatter is in adverse
possession as against the
tenant for the statutory period, the
contractual obligations as between the
landlord and tenant
(including the break clause) would remain unaffected.
The question
was raised in argument as to what would be the position if
before
any exercise of the option there was a joinder of the rights of
the
landlord and tenant either upon an acquisition by the tenant
of the freehold
or upon a purported surrender by the tenant. This
matter does not call for
present decision and might require
consideration of particular provisions,
but it may well be that
the squatter would not be protected from ejectment
after the date
when but for the events that had taken place, the term, by
the
exercise of an option, could have been terminated.
In view of
the opinion which I have expressed I do not find it necessary
to
deal with the submission which was made in reference to section 75
(1)
of the Land Registration Act, 1925.
For the reasons that I have given I would allow the appeal.
(P/32474) Wt 8019—114 35 7/62 StS./P.A./19