Adverse possession claim to vacant land – Claim based upon gardening operations of claimant’s tenant – Operations carried out with assent of persons enjoying gardening rights conferred by paper owner – Tenant giving access keys to those persons but not replacing them when lock later changed – Whether alleged adverse quality of possession negated by existence of licence – Whether tenant had necessary animus possidendi – Judgment in favour of paper owner upheld
The defendant council owned a 0.1 acre, rectangular piece of land enclosed by fences. The southern fence, which bounded a road, included a gate (the road gate) that afforded the only means of access to the land. The western fence separated the land from a block of flats, which also belonged to the council. The occupiers of the flats (the council tenants) each had the right, upon paying a nominal annual amount to the council, to use one of six marked-out sections of the land for personal gardening use. The remaining fences stood between the land and the gardens of various private dwellings, including a house at 22 Tonsley Street (the house).
In or about 1975, a tenant of the house (S) made an opening in the fence separating his small garden from the land and began to work the nearest section with the consent of the council tenant who had worked it until then. In 1981 the claimant acquired the freehold of the house subject to the tenancy in favour of S. By the end of 1983, S had extended his gardening operations to all six sections under a verbal arrangement with the council tenants whereby they could help themselves to fruit and flowers grown by S. Initially, S supplied each council tenant with a key to the road gate. However, S did not supply them with new keys on the several occasions that the lock was vandalised and had to be replaced. It was S’s practice to keep the gate unlocked during daylight hours.
S died in 1996, by which time the section markings applied by the council had been all but obliterated. Having sold the house in the same year, the claimant brought proceedings against the council claiming that it had acquired the land by adverse possession by virtue of the years of possession enjoyed by S. The council accepted that title could be so acquired, but denied that S’s acts amounted to a sufficient taking and exercise of possession. The county court judge found in favour of the council on the basis that S: (i) had at all material times acted under a licence from the council tenants; and (ii) in any event, did not have the necessary intention to exclude the world at large from the land. The claimant appealed to the High Court.
Held: The appeal was dismissed.
There was insufficient material before the judge to permit an inference that the council tenants had effectively licensed the acts relied upon by the claimant. However, in so far as his decision was based upon the second ground, he had correctly applied the principles laid down in Powell v McFarlane (1979) 38 P&CR 452 and Buckinghamshire County Council v Moran [1989] 2 All ER 225, as recently affirmed by the Court of Appeal in JA Pye (Oxford) Ltd v Graham [2001] EWCA Civ 117; [2001] 18 EG 176. Unlike a paper owner, who was readily assumed to have the requisite intention to possess, a trespasser had to adduce clear and affirmative evidence that the intention to possess was made clear to the world at large by his actions and words. The judge was right to find that S did not unequivocally intend such exclusion. S’s actions in giving the keys to the people who had the primary right to occupy were, at the very least, equivocal, being on one view consistent with the inference that he was simply using the garden with the express or implied assent of those who had a better title to occupy. That there came a time when he stopped providing the keys did not justify an inference that his intentions were changing at that point.
Stephen Shaw (instructed by Romain Coleman & Co) appeared for the claimant; Ranjit Bhose (instructed by DMH Solicitors, of Brighton) appeared for the defendants.
Alan Cooklin, barrister
