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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Tower Hamlets v Barrett & Anor  EWCA Civ 923 (19 July 2005)
Cite as:  EWCA Civ 923
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
His Honour Judge Bradbury
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE NEUBERGER
| MAYOR & BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS
|- and -
|ALFRED EUGENE BARRETT
VALERIE ANNE BARRETT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John McDonnell QC and Mr Timothy Sisley (instructed by Messrs Golkorn Mathias Gentle) for the Appellant
Crown Copyright ©
Lord Justice Neuberger :
The factual background
Identification of the issues in the case
The issues of principle which divide the parties
"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him…".
i) Were the Barretts' activities on and in relation to the area insufficient to justify the Judge's conclusion, subject to questions (ii) (iii) (iv) and (v), that they were in adverse possession of the area for more than 12 years?
ii) If not, was the Judge right to reject the Barretts' claim on the basis that the Council maintained factual possession as a result of the presence on the area of props shoring up the Palm Tree?
iii) If not, should the Barretts' claim fail because there was (a) an acknowledgment in the 1985 negotiations of the Council's title, and/or (b) the grant by the Council in and before 1985 of an implied licence to occupy the area (a new point raised by the Council)?
iv) Was the Judge right to accept the contention that, if title was acquired to the area by adverse possession in 1989/90, it is not the Barretts, but their former landlords, Trumans, who, having acquired it, now retain it?
v) If the Council would otherwise have lost title to the area by adverse possession, can they rely on the Human Rights Act 1998 ("the 1998 Act") to rebut this conclusion (another new point raised by the Council)?
What constitutes adverse possession?
The doctrine that a tenant acquires possessory title for his landlord
"It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord's title. …The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit."
What if there was an acknowledgment or licence in 1985?
The first question: were the Barretts in adverse possession?
The period between 1977/1978 and 1989/1990
The period between 1989/1990 and 2004
The second question: the effect of the props being on the area
"In my judgment [the] area was not … quite within the [Barretts'] exclusive physical control. The GLC and later the [Council was] responsible for putting up and keeping in place the shoring to the flank wall of the public house. It may have been a passive responsibility, which did not require regular attention, but it was nonetheless a responsibility and an assumption of ownership. Indeed the willingness of the [Council] to provide a grant to amongst other matters remove the shoring is perhaps a recognition of responsibility for it. So the [Barretts] fail the test for factual possession."
The third question: acknowledgment in 1985 and licence until 1985
Was there an implied licence?
Was there an acknowledgment by Trumans?
"If a man makes an offer to purchase freehold property, even though the offer be subject to contract, he is quite clearly saying that as between himself and the person to whom he makes the offer he realises that the latter has the better title, and that would seem to be the plainest possible form of acknowledgment."
The effect of the acknowledgment having been made by Trumans
"If the tenant occupies other land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant …, so that it becomes subject to the terms of the tenancy, and although the tenant may acquire title to it against the landlord for the remainder of the term, he must give it up to him when the tenancy ends".
The fourth question: Is title vested in Trumans not the Barretts?
"A conveyance of land, having houses or other buildings thereon, shall be deemed; to include and shall by virtue of this Act operate to convey with the land, houses, and other buildings, all …areas, courts, … demised, occupied, or enjoyed with … or appurtenant to the land, houses, or other buildings conveyed, or any of them …".
The fifth question: the effect of the 1998 Act
"[T]he need to apply section 3 in this area is only likely to arise in relation to the acquisition of title by a trespasser between October 2000 [when the 1998 Act came into force] and October 2003 [when the 2000 Act came into force] …".
Lord Justice Wall:
Lord Justice Thorpe: