Adverse possession — Whether appellant’s title lost by time of counterclaim — Whether respondent occupying pursuant to implied licence from appellant pending negotiations for sale — Appeal allowed
The appellant was the former occupant of a terraced house in a row that had been demolished in 1958 pursuant to a clearance order. The respondent had used the site of the former terrace as a car park since 1987, when it had approached the owners of the site with a view to purchasing the land. The appellant had been one of those contacted. A letter from her solicitor noted that various steps had been taken to facilitate the purchase but added that “we are instructed to ask you formally to vacate the site if the matter is not to proceed”. The respondent subsequently requested proof of the claimant’s title. Correspondence on that issue ensued, until, in February 1991, the respondent wrote again stating that if the appellant “is not interested in negotiating on a proper footing then presumably the answer will be to stake the plot off and proceed to use it”. A further letter sent later that month again stated that the respondent would be pleased to negotiate for the purchase of the appellant’s land, provided that she could show good title. Negotiations then came to an end.
Years later, the respondent brought proceedings against the local authority and the appellant to establish that it had acquired ownership of the site by adverse possession. The appellant counterclaimed. She relied upon a paper title to part of the cleared site used by the respondent, and argued that the respondent’s possession had, at least until 1991, been pursuant to an implied licence pending the completion of negotiations for a sale. The judge rejected that argument and allowed the respondent’s claim, holding that although the appellant had proved her paper title to part of the site, she had lost title to the respondent by the time of her counterclaim. He found that the respondent had established the necessary intention to possession and that such possession was adverse and not dependent upon an implied licence. The appellant appealed.
Held: The appeal was allowed.
The respondent’s letter of 1991 showed a clear recognition that if the appellant was correct in her assertion of title, the respondent’s possession was by way of a licence. The judge had been entitled to find that the appellant’s title was proved. The correspondence implied that the respondent could remain on the appellant’s property only if negotiations for a sale proceeded, and pending their completion. The request to vacate in the appellant’s 1987 letter and the threat to “stake the plot off and proceed to use it” in the respondent’s 1991 letter were both expressly contingent on the absence of negotiations. Had the appellant sued for trespass pending the breakdown of the negotiations, the respondent would have had a defence based upon her implied permission. The respondent’s possession had not been adverse for the necessary 12 years prior to the appellant’s counterclaim. Its adverse possession claim would therefore fail.
Nicholas Caddick and George Hayman (instructed by Dawbarns Pearson, of King’s Lynn) appeared for the appellant; David Berry (instructed by Berry & Walton, of King’s Lynn) appeared for the respondent.
Sally Dobson, barrister