Occupiers of blocks of flats claiming adverse possession – Claim based upon successive occupations by squatters – Council excluded from blocks at all times – Whether occupiers’ predecessors acknowledged council’s better title – Whether in any event sufficient possession taken by occupiers – Council obtaining possession order – Occupiers’ appeal dismissed
In 1979 the claimant council acquired 60 flats divided into eight self-contained blocks, which were built in the 19th century and collectively known as Oval Mansions. The instant appeal concerned blocks 1-4, which were first occupied by squatters during the course of 1983 and 1984. Thereafter, different squatters continued to come and go. From the time of the earliest squats, the council could not enter the blocks without the consent of an occupier, as the occupiers alone held keys to the outer doors.
In 1987 the persons then in occupation formed the Oval Housing Co-operative (OHC), with the objective of obtaining a licence from the council so that OHC could sublicence flats to the occupiers and generally control Oval Mansions. In January 1988 OHC appointed Solon Housing Association (Solon) to assist with its plans. In April 1988 Solon wrote to the council, on behalf of OHC, to state that it was pursuing the possibility of obtaining an occupation licence.
In January 1989 a number of residents from each block signed a petition addressed to the council, calling upon the council not to proceed with a proposed sale (eventually called off) of the blocks to another housing association. Later that month, the assistant secretary of OHC wrote to the council referring to OHC’s endeavours to obtain a licence. No licence of any kind was ever granted. Negotiations between the council and OHC ceased in 1993.
In November 1997 the council issued proceedings for possession of the blocks. The occupiers, relying upon the Limitation Act 1980, resisted the claim on the ground that they or their predecessors had been in adverse possession for more than 12 years. The council contended that the alleged occupation did not amount to adverse possession for the purposes of the Act (the possession issue). The council also asserted, relying upon sections 29 to 31 of the Act, that their title had, within the 12-year period, been acknowledged in writing by or on behalf of the occupiers so as to stop time running against the council (the acknowledgement issue).*
The county court judge allowed the council’s claim for possession of all but four flats, but rejected their submissions on the acknowledgement issue. The occupiers appealed and the council cross-appealed. The Court of Appeal directed that the acknowledgement issue be considered first.
Held: The appeal was dismissed and the cross-appeal allowed.
1. An effective acknowledgement, for the purpose of section 29 of the 1980 Act, had to be in writing and signed, either by the person in possession of the land or by the agent of that person, and once so made was binding upon all other persons in possession during the ensuing period of limitation: see section 31(1). It had only to be shown that, upon a true construction of the document in question, the person in possession had acknowledged that the paper title owner had the better title: see per Lord Upjohn in Edgington v Clark [1964] 1 QB 367 at p376. There was no reason why the court should strain against finding an acknowledgement, so long as the certainty of the writing avoided the risk of fraud or mistake: see Jones v Bellgrove Properties Ltd [1949] 2 KB 700.
2. The petition signed by some of the occupiers in person in January 1989 clearly satisfied those conditions. Contrary to the view taken by the trial judge, an acknowledgement did not have to be in terms of a request for a licence or something else. By seeking to persuade the council not to sell, the petitioners implicitly recognised the power and the right of the council to sell.
3. Per Simon Brown and Latham LJJ: A sufficient acknowledgement was also to be found in the letters of April 1988 and January 1989, there being no basis for the judge’s finding that OHC was not authorised to act on behalf of the individual occupiers.
4. On the possession issue, the judge was entitled to find that there was no consensual arrangement affecting the basis of occupation of the individual flats and that there was no physical occupation or joint adverse possession of the common parts. Nor did the judge hear any evidence of joint occupation of the outer walls, foundations or the roof. The fact that the council, by being excluded from each block, could be said to be dispossessed did not compel the conclusion that the defendants and their predecessors were collectively or jointly in adverse possession of the entirety. The authorities did not require the court to find an unacceptable “possessory vacuum”: Powell v McFarlane (1977) 38 P&CR 452 and Buckinghamshire County Council v Moran [1990] 1 Ch 623 considered.
*Editor’s note: The acknowledgement issue is also considered in Archangel v Lambeth London Borough Council [2000] EGCS 148.
Paul Morgan QC and Martin Westgate (instructed by Ole Hansen & Partners) appeared for the appellants; Andrew Arden QC, Andrew Dymond and Amy Baker (instructed by the solicitor to Lambeth London Borough Council) appeared for the cross-appellants.
Alan Cooklin, barrister
