· An oral offer to take a tenancy or licence does not stop time
running
· The true owner must start
possession proceedings within 12 years — an application to warn off a caution
is not sufficient
While the principle
that claimants must commence legal proceedings within specified time-limits has
much to commend it, its application to claims to land has always been
controversial since, there, its effect is to confer a title to the land on a
trespasser. In the past, the removal of an owner’s rights could be justified
because of the difficulty of tracing title to land; where no owner could be
found, it made sense to confer a legal title on someone who could prove long
and undisturbed possession.
However, now that
the true owner is often recorded at the Land Registry, then such penalty on a
landowner may be, to quote the judge in the latest high-profile case in this
area, both ‘disproportionate’ and ‘Draconian’; a view with which the Law
Commission and Land Registry (which have proposed significant reforms in the
law) would doubtless agree.
In JA Pye
(Oxford) Ltd v Graham [2000] EGCS 21, [2000] PLSCS 23 the claimant
was seeking to recover possession of 23ha of land, which had originally been
part of a farm that the claimant had sold off in 1977 and which had been
deliberately retained by the claimant for future development. Between 1977 and
1983, Pye had granted a series of grazing licences over the land to the the
owners of the farm. By 1983, the Grahams had bought the farm, and, in 1984,
their request for a further licence was rejected, in case it should jeopardise
an impending planning application. However, that summer they were granted a
licence to cut the hay crop. At the end of 1984 a grazing licence for 1985 was
sought. In mid-1985 the defendants requested permission to cut hay. There was
no response to either request.
Thereafter,
although the Grahams continued to farm the land along with their own, there was
no communication between the parties until the middle of 1997. Then, the
Grahams registered cautions in respect of the disputed land on the basis that
they had acquired title to it. In August 1997 the claimant wrote to both the
Land Registry and the Grahams, indicating that it was seeking to ‘warn off’ the
cautions. An originating application seeking their cancellation was issued at
the end of April 1998, and an action for possession was commenced in January
1999.
A squatter must
prove at least 12 years’ adverse possession of the land in question. In Pye,
legal issues arose as to the date from which, and until which, adverse
possession could have run. While it could not have commenced before January
1984 (ie after the last of the grazing licences expired), the effect of the
1984 licence to cut hay, and the request for its renewal in 1985, was disputed.
Did either or both of these events prevent the Grahams’ continued possession of
the land being adverse?
Neuberger J was
satisfied that, in principle, adverse possession can arise where an owner
allows someone on to his land for one purpose and that person uses it for
something different and unauthorised. However, this depends upon the particular
facts. In the present case, he concluded that the acceptance and exercise of a
right to cut hay during 1984 did prevent time running. He was equally satisfied
that the authorities show that an oral request by a squatter for a licence or a
tenancy does not stop possession being adverse. This meant that asking for a
licence for 1995 was irrelevant and, therefore, that time started running at
the end of August 1984.
The judge then
considered when any adverse possession could have been brought to an end. The
Limitation Act refers to an ‘action… brought… to recover any land’. The
claimant alleged that this embraced either its application to the Land Registry
to warn off the cautions (August 1997) or its originating summons to have those
cautions cancelled (April 1998). However, the judge accepted the defendants’
contention that time was only stopped from running by the action to recover
possession in January 1999.
The above
conclusions meant that the defendants had used the disputed land between
September 1984 and January 1999, ie for over 14 years. So, the final and
crucial question was whether their possession had been adverse. Had they
factually possessed the land with the necessary intention? Again, reluctantly,
the judge was satisfied that the defendants had made out their case.
There was little
doubt that they had factual possession, since they had manifestly used the land
in the manner of an occupying owner.
However, it had to be shown that they had intended, in their own name, to
exclude the world at large, including the true owner, so far as is reasonably
practicable and so far as the law allows. This had been established by the
combined effect of a number of factors. The defendants had used the land in the
same way as it had been used in previous years and they had not done so on an
ad hoc basis, but had maintained it properly and ‘kept it in good heart’. They
had also controlled all access to the land. As former licensees, they were susceptible
to the argument that they had drifted into persistent trespass rather than
adverse possession, but the judge was satisfied that this is less sustainable
where, as here, the licence had been positively and emphatically brought to an
end.
Finally, if a
squatter knows that his use of the land is consistent with the owner’s future
intentions, this can militate against the possession being adverse. In this
case, the Grahams’ use of the property was, in fact, inconsistent with the
claimant’s intention to develop, since Pye originally took the view that any
agricultural use would hamper the chance of obtaining planning permission. If,
once Pye decided simply to postpone development, their use became consistent,
the defendants were not aware of this.
