Adverse possession — Occupation by licence — Possession claim — Whether licence determined — Whether defendants having necessary intention to possess — Claim allowed
The first defendant’s husband ran into business difficulties and sold his land to the claimant’s predecessor in title on condition that he could continue to occupy it rent-free. After his death, the first defendant signed a document recording the basis of her occupation as a licensee only and agreeing to give vacant possession at any time. In 1989, ownership of the land was transferred to the claimant. By then, the first defendant had moved out of the property, but her daughter and son-in-law, the second and third defendants, had moved in.
In late 2001, the claimant purported to determine the first defendant’s licence, and brought possession proceedings. In their defence, the second and third defendants claimed to have acquired title by virtue of more than 12 years’ adverse possession, pursuant to section 15 of the Limitation Act 1980.
An issue arose as to when the claimant’s cause of action had accrued. The defendants contended that this had occurred in 1989, when the claimant had become the registered owner of the land, since the effect of the transfer had been to determine the licence as between the claimant’s predecessor and the first defendant. They submitted that, thereafter, they had been in adverse possession since they had exercised custody and control of the property, intending to do so for their own benefit and to the exclusion, so far as legally practicable, of the world at large, including the owner. The claimant argued that the parties had intended that the licence should continue notwithstanding the change in ownership, and further submitted that the second and third defendants had never had the necessary intention to possess.
Held: The claim was allowed.
The case turned on whether the second and third defendants had ever intended to possess the property so as to dispossess the claimant. The critical feature of their case was that they had believed their possession to be by virtue of the permission given to the first defendant by the paper owner, and by virtue of the first defendant being content for them to stay despite her own departure. A person who was in factual possession and who intended to remain in possession only for so long as the true owner continued to permit him or her to do so did not have the necessary intention to possess for the purpose of starting a period of limitation running in his or her favour: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419; [2002] 28 EG 129 (CS) distinguished. Accordingly, the claimant was entitled to succeed in its claim, irrespective of the effect of the interpretative requirements of section 3 of the Human Rights Act 1998: Beaulane Properties Ltd v Palmer [2005] 14 EG 129 (CS) noted.
Jonathan Marks QC and Kate Livesey (instructed by Flint Bishop Barnett, of Derby) appeared for the claimant; Geraint Jones QC and Robert Darbyshire (instructed by Knight & Sons, of Newcastle under Lyme) appeared for the defendants.
Sally Dobson, barrister