Tenant of council land — Non-payment of rent — Tenant continuing in possession of land more than 12 years thereafter — Whether belief of tenancy existing mitigated against acquisition of title — Whether possession of tenant adverse after period for paying rent expired — County court holding that tenant not in adverse possession — Court of Appeal allowing appeal – Tenant establishing possessory title — Landlord’s title extinguished
The plaintiff sought a declaration that the title of the defendant council to land near to the former Whitwood Sewage Works, Ackton, Castleford, had been extinguished. The plaintiff became a council tenant in 1969 and had occupied the land ever since. There was no written tenancy agreement. It was a quarterly tenancy, but the payments of the rent were actually paid twice weekly. No rent had been paid since 1974, when the council’s right of action accrued and as the plaintiff had been in possession ever since, he claimed that the defendants’ title was extinguished in 1986 by the plaintiff’s adverse possession. The county court held that the plaintiff had been in factual possession of the land throughout, but that there was a further requirement of an intention to possess in a manner inconsistent with the title of the true owner. This had not been met by the plaintiff. As the plaintiff mistakenly believed for some time that he was still paying rent to the defendants as landlords his possession was not adverse. The application for a declaration by the plaintiff was dismissed. The plaintiff appealed.
Held The appeal was allowed.
1. The question was whether the belief that he was a tenant precluded the plaintiff obtaining title by adverse possession to the land.
2. Under section 15(1) of the Limitation Act 1980 no action to recover land could be taken after the expiration of 12 years after the right of action accrued.
3. What was required to establish adverse possession was not an intention to own or even to acquire ownership, but an intention to possess: see Buckinghamshire County Council v Moran [1990] Ch 623.
4. The plaintiff had been in factual possession of the land since 1969. Factual possession for limitation purposes required “exclusive physical control” of the land: see Powell v McFarlane (1977) 38 P&CR 452.
5. If an occupier’s right to occupation was derived from the owner in the form of permission, agreement or grant it was not adverse, but if it was not so derived it was adverse: see Moses v Lovegrove [1952] 2 QB 533, at p543.
6. For the purposes of adverse possession the possession of a tenant was to be considered adverse once the period covered by the first payment of rent had expired: see Hayward v Challoner [1968] 1 QB 107.
7. Under Schedule 1, para 5(1) the tenancy was treated for limitation purposes as determined in summer 1974 when the defendants’ cause of action accrued.
8. Schedule 1, para 8(1) required the land to be “in possession of some person in whose favour the period of limitation can run” if the right of action to recover land was to be treated as accruing. This land was at all times in the plaintiff’s possession.
9. In all the circumstances the plaintiff had established possessory title to the land and he was entitled to a declaration that the defendants’ title was extinguished.
Godfrey Jarand (instructed by Frank Allen Pennington, of Doncaster) appeared for the plaintiff; Philip Lancaster (instructed by the solicitor to Wakefield Metropolitan District Council) appeared for the council.
