Possession claim — Defence of having acquired title by adverse possession — Judge allowing claim — Whether letter by another occupant of the land amounting to acknowledgment of title such as to restart period of adverse possession — Whether occupation going beyond terms of consent — Appeal allowed
The respondent was the registered owner of a site comprising two dilapidated warehouses and a yard. The land had at various times been occupied by the appellant, who ran a scrap metal business, and by a haulage tipping business run by P through two companies. The respondent brought possession proceedings against the appellant. By his defence and counterclaim, the appellant claimed to have acquired title to the land in 1999 by 12 years’ adverse possession, pursuant to sections 15 and 17 of the Limitation Act 1980.
The judge found that adverse possession had arisen, since the nature and extent of the appellant’s use of the land had gone beyond the terms of a consent granted by the respondent, which the judge found was confined to permitting storage of the occasional vehicle. However, he allowed the respondent’s claim on the ground that a letter written in 1994 by P’s solicitor to the respondent’s trustee in bankruptcy constituted an acknowledgment of the respondent’s title within the meaning of sections 29 and 30. The judge held that the possession of squatters could, as a matter of law, combine to constitute a single exclusive possession such that the respondent was bound by an acknowledgment given by P. The letter in question had been written in response to an enquiry regarding a caution registered by one of P’s companies, and had purported to be written on behalf of that company, which, however, had ceased to exist by the time of writing.
On appeal, the appellant argued that it was not bound by an acknowledgment given by P and that, in any event, the letter was not an acknowledgment of title for the purposes of the Act. The respondent sought to uphold the judge’s judgment on additional grounds, arguing that, inter alia, the judge should not have found that the appellant’s occupation went beyond the terms of the consent.
Held: The appeal was allowed.
(1) For a document to constitute an acknowledgment of title, all that was required was that, as between the person in possession and the owner of the paper title, the former acknowledged that the latter had the better title to the land. Whether a document amounted to an acknowledgment would depend upon the true construction of that document in the surrounding circumstances: Edgington v Clark [1964] 1 QB 367 applied. What was needed was a statement by or on behalf of the person in possession that was reasonably understood by the owner as an acknowledgment from that person, although the owner did not have to know who was in possession, and the person acknowledging did not have to the identity of the owner: Lambeth London Borough Council v Bigden [2000] EWCA Civ 302; (2001) 33 HLR 43 applied. In the instant case, although the letter amounted to a clear acknowledgment that the trustee in bankruptcy had a better title to the property, that acknowledgment could not be construed as having been made on behalf of the person in possession. It was not a case where, the company having ceased to exist, the letter could properly be said to be coming from the person standing behind the company. The trustee in bankruptcy had written to the company not because it was in possession, but because it was the person that had registered the caution. The letter in response was written as though that company still existed and referred to it as holding the caution. In those circumstances, the letter could not be construed as having been written on behalf of whoever happened to be in possession of the property. That conclusion made it unnecessary to decide whether the appellant would have been bound by an acknowledgment given by P.
(2) Possession was not adverse where it was enjoyed pursuant to a licence. Whether a person with a limited permission to use or occupy land could rely upon more extensive activity to claim adverse possession was a question of fact turning on the circumstances of the case: Buckingham County Council v Moran [1990] Ch 623 and JA Pye (Oxford) Ltd v Graham [2000] 2 EGLR 137 applied. A change in the nature of the occupation would be necessary for occupation by consent to become adverse possession, and it was not sufficient merely to increase the use beyond what was permitted or contemplated. In the instant case, the judge had been entitled to conclude that the appellant’s use had substantially exceeded the limited permission such that there was a difference not just in the degree but in the nature of that use.
Paul Morgan QC and Damian Falkowski (instructed by Gersten & Nixon) appeared for the appellant; Jane Giret QC and Timothy Cowen (instructed by Blake Lapthorn Tarlo Lyons, of Southampton) appeared for the respondent.
Sally Dobson, barrister