Limitation Act 1980 – Claimant relying upon possession taken by former tenant – Whether tenant possessed the required animus possidendi – Claimant assigning reversion while tenancy still subsisting – Whether claimant able to rely upon presumption that possession taken on his behalf
At all material times until 1952, F owned a property near Amersham, Buckinghamshire. The property comprised a house with a garden and a large area of adjoining farmland that was let to three brothers, who farmed it as joint tenants. In March 1952 F sold part of the property (the company part) to a company. The company part included the house and garden and part of the farmland (the disputed land). The remainder of the property (the reduced farmland) was sold on the same day to the claimant (JA), who thereafter received all the rents payable by the brothers until the end of their tenancy in 1960. Two lettings of the reduced farmland by JA followed, on the second occasion to H, who took possession in 1965. Thereafter, H farmed both the reduced farmland and the disputed land, believing that the latter belonged to JA and that he was farming it with JA’s permission. In 1987 JA sold the reduced farmland to his son. In 1998 the defendant charity trustees acquired the company part from a successor to the company. In 1989 JA’s son took a surrender of H’s tenancy.
In December 2000 JA obtained an order entitling him to be registered as the proprietor of the disputed land, the deputy solicitor to the Land Registry having accepted that JA had acquired a good possessory title by virtue of the years that H had been in possession. The defendants appealed, contending that: (i) H’s possession had not been adverse; (ii) alternatively (if such possession had been established), H could not be said to have possessed the land on behalf of JA. The second issue turned upon the precise scope of the presumption that a title acquired by adverse possession by a tenant accrues to the benefit of the landlord: leading case of Kingsmill v Millard [1855] 11 Exch 313. No claim to the disputed land was at any time made by JA’s son.
Held: The appeal was allowed on both grounds.
1. JA had to show that H intended to possess the land to the exclusion of all other persons, including the owner with paper title. The fact that H had, to all outward appearances, behaved like a person having that intention did not amount to proof in the instant case, as it had been positively established (by H’s own testimony) that, as far as he was concerned, he was farming the land at the will of JA: Powell v McFarlane (1979) 38 P&CR 452 and Buckinghamshire County Council v Moran [1990] Ch 623 applied.
2. As regards the second issue, the presumption affirmed in Kingsmill was not limited to instances where the disputed land belonged to the landlord or was subject to the landlord’s manorial rights. While it seemed to be anomalous to extend the presumption to land belonging to third parties, it was not open to the instant court to decide otherwise: see Smirk v Lyndale Developments Ltd [1975] 2 EGLR 43 (approved on appeal) and Whitmore v Humphries (1871) LR 7 CP1. The fact that the third party himself was not bound by the presumption (which operated as a form of estoppel between the landlord and the tenant) would not normally pose a problem for the landlord, as appropriate directions could be made to make the tenant a party to the action.
3. However, in the instant case the relevant landlord was not JA, but his son. Although the paper title was extinguished at a time when JA was landlord, the question to be asked was who had acquired the possessory title that had arisen in its place. Since the tenant could take steps to rebut the presumption at any time during the tenancy (see per Parke B in Kingsmill at p319), the logical time at which to assess whether the presumption worked to the landlord’s advantage was the end of the tenancy.
Nicholas Asprey (instructed by Reynolds Parry-Jones & Crawford, of High Wycombe) appeared for the claimant; Jonathan Brock QC and Caroline Hutton (instructed by Curtis, of Plymouth) appeared for the defendants.
Alan Cooklin, barrister
