Adverse possession — Property owned by claimant council — Respondent occupying property for more than 12 years — Unsuccessful negotiations between parties for grant of lease — Claimants bringing proceedings for possession of property — Whether respondent entitled to claim adverse possession — Whether property occupied with claimants’ permission — Section 15 of and Schedule 1 to Limitation Act 1980
The claimant council were the freehold owners of land and property that had originally provided accommodation for a cemetery keeper in Bath, but which was later padlocked and used for storage. In 1981, the respondent moved into the property with his family, and carried out substantial repairs to make it habitable. In 1982, it came to the claimants’ attention that the property was occupied by squatters, and negotiations commenced for the grant of a lease to the respondent. The respondent also applied for planning permission, and obtained a grant from the claimants to carry out improvements to the property. In 1984, the property’s drainage system became blocked. The respondent contacted the claimants, which took steps to rectify the problem.
Negotiations for the lease were still ongoing in 1988 when the respondent’s solicitor wrote a “without prejudice” letter to the claimants, proposing terms for the lease. The claimants maintained that this was a clear acknowledgment of their title to the property. When the parties failed to reach an agreement in respect of the lease, the claimants served a notice to quit, and, in 2000, commenced proceedings for possession. The respondent resisted the application, arguing that: (i) he was entitled to ownership of the property as he had occupied it by way of adverse possession since 1982; (ii) the claim for possession was barred under section 15 of, and Schedule 1 to, the Limitation Act 1980; and (iii) the 1988 letter was not admissible because it was protected by privilege.
Held: The claimants were entitled to possession of the property.
The burden fell upon the respondent to establish adverse possession. A trespasser was required to show that he had both factual possession and the requisite intention to possess the land. The mere assertion of control by the owner of the paper title to the property was not sufficient to negate the trespasser’s possession. On the evidence in the present case, the respondent had established both factual possession and an intention to possess the property from 1982. He was in control of the property and had secured it against the world. Furthermore, by making applications for planning permission and local authority grants, and in his dealings with the claimants in relation to the drainage problem, the respondent had acted in a manner consistent with ownership of the property: JA Pye (Oxford) Ltd v Graham [2001] EWCA Civ 117; [2001] 2 EGLR 69, Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912; (2001) 33 HLR 74 and Powell v McFarlane (1979) 38 P&CR 452 followed.
However, possession was not adverse if it was enjoyed with the permission of the owner. In this case, the claimant’s overt act of allowing the respondent to continue to occupy the property once they had become aware of his presence would have led any reasonable person to conclude that he had the claimants’ permission to be there. Moreover, the 1988 letter was evidence that the respondent had tacitly acknowledged that the claimants had allowed him to occupy the property. The letter was written in the context of ongoing negotiations for a lease, and did not attract “without prejudice” protection in the present circumstances. Accordingly, it could not be said that the respondent had enjoyed adverse possession of the property for a 12-year period, as required by the 1980 Act. In the circumstances, the claimants were entitled to possession of the property.
Christopher Baker (instructed by Steele & Co, of Norfolk) appeared for the claimants; David Watkinson (instructed by Bobbetts Mackan, of Bristol) appeared for the respondent.
Eileen O’Grady, barrister
