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Cite as: [1962] UKHL 1, [1962] 2 All ER 288, [1963] AC 510, [1962] 2 WLR 1020

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JISCBAILII_CASE_NI_LAND_LAW_PROPERTY
JISCBAILII_CASE_PROPERTY

    Parliamentary Archives,
    HL/PO/JU/4/3/1098

    HOUSE OF LORDS

    FAIRWEATHER

    v.

    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 K.B. 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.

    1. 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.

    2. 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 :

    1. 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.

    2. 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 K.B. 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 K.B. 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



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