Limitation Acts — Adverse possession — If a judgment for possession has been obtained in an action for recovery of land commenced in due time, the successful plaintiff has then 12 years from the date of judgment within which to enforce it before any question of limitation can arise — The effect of an occupation licence, even if granted unilaterally without the agreement of the licensee, may be to put an end to the adverse character of the occupation — In the present case, after a somewhat chequered previous history, the parents of the appellant were in adverse possession of a farmhouse and garden as from the termination of a previous tenancy on February 2 1955 — In 1962 possession proceedings were brought against them and a possession order was made in December 1962 — No action was, however, taken to enforce that possession order until 1974 — In September 1974 leave was given to enforce the 1962 order, and a warrant was ordered to be issued but not to be enforced until October 31
The following
cases are referred to in this report.
Hayward v Chaloner [1968] 1 QB 107; [1967] 3 WLR 1068; [1967] 3 All
ER 122; [1967] EGD 498; (1967) 203 EG 599, CA
Hughes v Griffin [1969] 1 WLR 23; [1969] 1 All ER 460; (1969) 20
P&CR 113, CA
Lamb (W
T) & Sons v Rider [1948] 2 KB 331;
[1948] 2 All ER 402, CA
Lougher v Donovan [1948] 2 All ER 11, CA
Powell v McFarlane (1979) 38 P&CR 452
St
Marylebone Property Co Ltd v Fairweather
[1963] AC 510; [1962] 2 WLR 1020; [1962] 2 All ER 288, HL
This was an
appeal by the defendant, Mr W Buckler, from the decision of Hollis J granting a
possession order to the plaintiffs (present respondents) in respect of a
farmhouse and garden at Great House Farm, Llandough, near Penarth, South
Glamorgan. The title claimed by the appellant, through his mother’s estate
(although no grant of representation had yet been obtained) depended on the
establishment of adverse possession by his parents and subsequently by his
mother. Hollis J held that the possessory title put forward in reply to the
plaintiffs’ claim to possession had not been made out.
J B W
McDonnell QC and M Jarman (instructed by Robbins Olivey & Blake Lapthorn,
agents for Loosemores, of Cardiff) appeared on behalf of the appellant; Paul
Morgan (instructed by Linklaters & Paines) represented the respondents.
Giving
judgment, DILLON LJ said: This appeal, by the defendant in the action against a
decision of Hollis J given on July 24 1986 when he was sitting as a judge of
the Queen’s Bench Division in Cardiff, raises a novel question of some
potential importance under the provisions of the Limitation Acts 1939 and 1980
in relation to the acquisition of title to land by adverse possession.
The action
concerns a farm known as Great House Farm at Llandough near Penarth in South
Glamorgan. The plaintiffs, BP Properties Ltd, have the paper title to the farm,
and indeed since November 1982 they have been the registered proprietors of it
at HM Land Registry following first registration. They claimed possession
against the defendant, Mr W Buckler (‘Mr Buckler junior’) and he sought to set
up a possessory title by adverse possession by himself, and by his parents, Mr
and Mrs Frederick Buckler, before him. The judge held that the suggested
possessory title was not made out, and he accordingly made the possession order
which the plaintiffs sought. Mr Buckler junior appeals against that order, but
the appeal has been limited to the farmhouse itself and its garden, shown
coloured red on the plan served with the statement of claim. So far as the rest
of the farm is concerned, the possession order is not challenged, since the
claim to a possessory title failed on findings of fact by the judge that the
acts of so-called possession relied on were altogether too tenuous and
equivocal to support the claim.
So far as the
farmhouse and garden are concerned, however, the position on the facts is
different, in that there is no doubt that Mr Buckler junior has exclusive
possession of the farmhouse and garden, as his parents did before him, and no
rent has been paid since 1953.
Great House
Farm used to belong to the Marquis of Bute, and in February 1916 the Marquis
granted a yearly agricultural tenancy of the whole of the farm to a Mr John
Williams, who was Mr Buckler junior’s maternal grandfather. In 1938 the
reversion on that tenancy was conveyed to a company called Western Ground Rents
Ltd.
It appears
that Mr Williams, who may already by then have been elderly, fell into arrears
with his rent in the mid-1930s and in the late 1940s. Because of that,
agreement was reached for Mr Williams’ tenancy to be surrendered and for a new
yearly agricultural tenancy commencing at February 2 1949 to be granted to Mr
Williams’ son-in-law, Mr Frederick Buckler, who was the father of Mr Buckler
junior. It was intended that Mr Frederick Buckler should have a written tenancy
agreement, but this did not happen because Mr Frederick Buckler also failed to
pay the rent. There is a letter from the landlords’ agents to their solicitors
of October 10 1952 stating that they did not propose to proceed with the letting
to Mr Frederick Buckler. However, the conclusion must be that, even though
there was no written agreement, Mr Frederick Buckler had a periodic tenancy
which was protected by the Agricultural Holdings Act.
It is
unnecessary to go into the details of the payments made by Mr Frederick
Buckler. On the evidence, the last payment of rent made by him — in fact a
payment under a judgment for arrears of rent — was made at some time in 1953.
His tenancy was then duly terminated by a notice to quit which expired on
February 2 1955. Western Ground Rents then brought proceedings for possession
against Mr Frederick Buckler in the High Court and obtained a possession order,
under Order 14, in respect of the whole of the farm. On July 4 1955 that
possession order was enforced, and possession was taken in respect of all parts
of the farm except the farmhouse and garden. The reason why the order was not
enforced in respect of the farmhouse and garden was that Mrs Mary Buckler
(daughter of Mr Williams, wife of Mr Frederick Buckler and mother of Mr Buckler
junior) had recently come out of hospital after having had a leg amputated and
was objecting very strongly to leaving the farmhouse. There was even,
apparently, a fear that she might attempt suicide.
In the upshot,
Mr and Mrs Frederick Buckler’s occupation of the farmhouse and garden was
undisturbed for many years. Mr Buckler junior was also there, but he was then
only a boy, having been born on August 25 1948. Mr Williams and his wife Mrs
Esther Williams had also been living there in 1955, but they died. By 1959, at
any rate, Mrs Mary Buckler, who was also from time to time referred to as Mrs
Williams, had conceived the notion that she had a title to the ownership of
Great House Farm through her own grandfather and that there were documents in
existence which proved her title. No such documents were, however, ever
produced. She was offered a tenancy of the farmhouse and garden by Western
Ground Rents but refused to accept it. She was also later offered, and refused,
alternative accommodation.
The advisers
of Western Ground Rents seem during these years to have supposed that, if they
attended at the farmhouse from time to time and asserted Western Ground Rents’
title, that was sufficient to prevent time running against Western Ground Rents
under the Limitation Act 1939. Plainly, however, that notion was erroneous, as
section 13 of the Act provides that ‘no person shall be deemed to have been in
possession of any land by reason only of having made a formal entry thereon,
and no continual or other claim upon or near any land shall preserve any right
of action to recover the land’.
In 1962,
however, Western Ground Rents brought a fresh action in Cardiff County Court
against Mr Frederick Buckler and Mrs Buckler for possession of the farmhouse
and garden and mesne profits since 1955. On December 11 1962 a possession order
was made by Judge Temple Morris QC together with an order for payment of mesne
profits. The latter was to some extent enforced, in that there seems to have
been a suspended committal order against Mr Frederick Buckler in June 1963, but
nothing was done before 1974 to enforce the 1962 possession order. In the
meantime Mr Frederick Buckler died at some time in the period 1965-67, and in
December 1969 Great House Farm, including the farmhouse and garden, was sold by
Western Ground Rents to BP Pension Trust Ltd.
After the
death of Mr Frederick Buckler, Mrs Buckler remained in possession of the
farmhouse and garden, with various of her children living there with her,
including Mr Buckler junior. No payment was made.
In 1974 BP
Pension Trust Ltd started a fresh action in the Cardiff County Court for
possession and mesne profits against Mrs Buckler (sued as Mrs Williams) and
various members of her family, including
defence to be filed on behalf of Mrs Buckler, and a defence was filed asserting
that BP Pension Trust’s claim was barred by adverse possession under the
Limitation Act 1939; so far as Mr Buckler junior is concerned, it was pleaded
that he occupied the property as licensee of Mrs Buckler. That action has never
been finally heard. However, on September 17 1974 BP Pension Trust Ltd gave
notice of an application by them as successors in title to Western Ground Rents
for leave to enforce the possession order of December 11 1962 (the order of
Judge Temple Morris QC) and on September 19 1974 Judge Watkin Powell on that
application gave BP Pension Trust Ltd leave to execute the order for possession
of December 11 1962. He ordered that the possession warrant do issue forthwith
but be not enforced until October 31 1974.
On October 30
1974 Mrs Buckler’s solicitors issued a notice of appeal to this court against
the order of Judge Watkin Powell (on the ground that Mrs Buckler had had
insufficient notice of the application and therefore had had no opportunity of
presenting her case) and her solicitors took an appointment before the judge in
the Cardiff County Court for Monday November 4 for a stay of execution of his
order of September 19 1974. More effectively, however, as soon as Judge Watkin
Powell’s order was known, a press campaign broke out in South Wales, with some
support on television, against the threatened eviction of Mrs Buckler. Mrs
Buckler was described as an elderly widow, confined to a wheelchair, who was
being thrown out of the cottage her family had occupied for centuries, so that
the historic cottage could be bulldozed to the ground and developers could
build executive houses on the site.
Against that
background, the two letters which are at the heart of this case were written.
Both are dated October 31 1974. One is from BP Pension Trust Ltd and the other
from the present plaintiffs, BP Properties Ltd. Both are addressed to Mrs
Buckler (described again as Mrs Williams), but both were in fact sent not to
her but to her solicitor, who seems to have received them on the morning of
November 4, immediately before he made his application to Judge Watkin Powell
in the Cardiff County Court.
The letter
from BP Pension Trust is as follows:
We have been
advised that you are making an application to the Court for a Stay of Execution
of the Order for Possession which was recently confirmed, and that you are
proposing to apply to have the judgment of the Court, which we were seeking to
enforce, set aside.
You will, we
hope, understand that the Trustees of The British Petroleum Pension Trust are
not, and never have been, unsympathetic to your position, but they are bound in
law to have a prime regard for the interests of their Pensioners and they had
no alternative but to exercise remedies against you which the law provides.
The only way
in which they could safeguard your future occupation of Great House Farm is by
selling the property to a purchaser who is not bound by similar constraints. We
are now pleased to advise you that we have found such a purchaser in BP
Properties Ltd, who have agreed to buy the property from the Trust.
Accordingly, the instructions given to the Bailiff to execute the judgment of
the Court have been withdrawn.
As the
Possession Order will not now be executed, your application for a Stay of
Execution becomes unnecessary. Your Solicitors are immediately being advised
accordingly.
The letter
from BP Properties is as follows:
You will be
hearing separately from our Pension Trust that they are selling Great House
Farm to BP Properties Ltd.
As BP
Properties is not obliged by the same constraints as the Pension Trust and
since we wish to help you as much as possible, we are prepared to allow you to
remain in occupation of the house and garden rent free for as long as you may
wish and for the rest of your life if you so desire.
I am pleased
accordingly to confirm that we will not require you to give possession during
your lifetime or until such time as you may choose no longer to live in the
house, and we have given the necessary instructions so that no proceedings will
be commenced until you personally no longer live there.
I do hope
that by making this gesture you will accept the situation and that no further
problems will arise in the future.
Because of
these two letters the landlords’ solicitors did not attend the appointment
before the judge on November 4 1974. Mrs Buckler’s solicitors produced the
letters to the judge, and he stayed execution on the warrant for possession
pending Mrs Buckler’s agreement to the proposals in the letters. Her solicitor
then telephoned Mrs Buckler, told her of the letters and sought her
instructions. Before she had given any instructions, however, the landlords’
solicitors themselves wrote to the county court, at some date prior to November
25 1974 and withdrew the warrant for possession. Mrs Buckler therefore never
expressly accepted or rejected the terms of the two letters. She was left in undisturbed
possession of the farmhouse and garden, rent free, until her death, which
occurred in March 1983.
As I have
mentioned, BP Properties Ltd were registered as the proprietors of the whole of
the farm at HM Land Registry in November 1982. If, however, by that time Mrs
Buckler had acquired a valid title to the farmhouse and garden by adverse
possession, she would have had an overriding interest to which the registration
of BP Properties Ltd was necessarily subject, and her personal representatives would
be entitled to obtain rectification of the register. In fact no grant of
representation to the estate of Mrs Buckler has so far been obtained, but
nothing has turned on this in the course of the argument since, even though on
the facts Mr Buckler junior must claim through Mrs Buckler’s estate if he has
any claim to the farmhouse and garden at all, BP Properties Ltd are concerned
to establish their title and claim possession against all members of the
Buckler family.
When this
action was brought, the Limitation Act 1980 was in force. Section 15(1)
provides that:
no action
shall be brought by any person to recover any land after the expiration of 12
years from the date on which the right of action accrued to him, or, if it
first accrued to some person through whom he claims, to that person.
That is to the
same effect as section 4(3) of the 1939 Act. Section 16 of the 1939 Act (now
section 17 of the 1980 Act) provided that at the expiration of the period
prescribed by the Act for any person to bring an action to recover land, the
title of that person to the land should be extinguished. Accordingly the
primary claim for Mr Buckler junior on this appeal has been that there was
adverse possession of the farmhouse and garden from, at latest, February 2 1955
when Mr Frederick Buckler’s tenancy expired, or alternatively from the date in
1953 when he last paid any rent, with the result that the landlord’s title was
extinguished at latest in February 1967 under section 16 of the 1939 Act. If
that be right, it is submitted that what was done in 1974 was of no effect
because the landlord’s title had already been extinguished.
Alternatively,
it is submitted for Mr Buckler junior that, even if the landlords’ title had
not been extinguished by October 31 1974, the proposals in the letters of that
date, as they were merely unilateral and were never agreed to by Mrs Buckler,
had no effect in law on the adverse nature of Mrs Buckler’s continuing
possession of the farmhouse and garden. It is admitted for BP Properties Ltd
that Mrs Buckler was in adverse possession from her husband’s death in 1965-67
until October 31 1974. It is submitted for Mr Buckler junior that, if the
proposals in the letter had no effect in law on the adverse nature of Mrs
Buckler’s continuing possession, then the title of BP Properties Ltd was barred
and extinguished on the expiration of 12 years from Mr Frederick Buckler’s
death, viz at latest in 1979.
A third
argument put forward for Mr Buckler junior derives from the fact that the
actual conveyance of the farmhouse and garden by BP Pension Trust Ltd to BP
Properties Ltd did not take place until May 1975. It is consequently submitted
that any licence to occupy rent free which was purportedly granted by the
letters of October 31 1974 was granted by the wrong company; it should have
been granted by BP Pension Trust Ltd, the legal and theretofore beneficial
owner, and not by BP Properties Ltd. I see nothing in this rather technical
point; the letters record sufficiently that BP Properties Ltd had agreed to buy
the property from the Pension Trust, and BP Properties Ltd was therefore prima
facie in a position to grant a licence to Mrs Buckler.
The judge
rejected the primary claim on the ground that Mr Frederick Buckler’s possession
during his lifetime was not ‘adverse’, and so time did not begin to run against
the landlords until after his death. On the second argument he held that the
effect of the letters of October 31 1974 was to constitute Mrs Buckler the
licensee of BP Properties Ltd, and thus no longer in adverse possession, even
though the letters were written unilaterally and without any agreement with
her. The defence under the 1939 and 1980 Acts therefore failed.
The judge
concluded that Mr Frederick Buckler was not in adverse possession because in
the judge’s view adverse possession required an animus possidendi. Animus
possidendi was defined by Slade J in Powell v McFarlane
(1979) 38 P & CR 452 at p 471 as involving:
the
intention, in one’s own name and on one’s own behalf, to exclude the world at
large, including the owner with the paper title if he be not himself
the possessor, so far as is reasonably practicable and so far as the processes
of the law will allow.
The judge felt
that Mr Frederick Buckler did not have this animus partly because at one
stage in March 1965 when Western Ground Rents’ agents offered Mrs Buckler a
tenancy Mr Frederick Buckler was complaining that Western Ground Rents had
refused to let him the land (thus perhaps suggesting that he himself would have
been glad of the offer of a tenancy), and partly, I think, because at another
time Mr Frederick Buckler was saying that he did not want to do anything which
might jeopardise Mrs Buckler’s claims to ownership of the land. The judge then
held — paradoxically, in my view, on the facts of this case — that he could not
give any effect to Mrs Buckler’s obvious animus possidendi while her
husband was alive, since, while he was alive, only his intention counted.
For my part, I
would hold without hesitation on the facts that Mr and Mrs Frederick Buckler
were jointly in adverse possession of the farmhouse and garden from the
expiration on February 2 1955 of his previous tenancy. It is possible, as the
previous tenancy was not under a written agreement, that there was adverse
possession also from the last payment of rent in 1953 to February 2 1955; see Hayward
v Chaloner [1968] 1 QB 107. But the extra period has no relevance to the
outcome of this appeal.
Even if there
were adverse possession from February 2 1955 or from the last payment of rent
in 1953, it does not follow that the landlord’s title was ‘extinguished’ 12
years thereafter in any sense which would render what was done in September,
October and November 1974 nugatory. The statutory concept of the
‘extinguishment’ of a person’s title by a requisite period of occupation was
examined by Lord Radcliffe in St Marylebone Property Co Ltd v Fairweather
[1963] AC 510. He pointed out at p 535 that the squatter comes in and remains
in always by right of possession which in due course becomes incapable of
disturbance as time exhausts the one or more periods allowed by statute for
successful intervention. He commented, also at p 538, that the right or title
extinguished was conterminous with the right of action, the barring of which
was the occasion of the extinguishment.
In the present
case the 1962 county court proceedings were commenced, and the possession order
of December 11 1962 was obtained, well before there had, on any view, been 12
years’ adverse possession of the farmhouse and garden. If proceedings to
recover land are begun before there has been 12 years’ adverse possession — eg
if they are begun in the eleventh year — then the right of action is, on the
wording of section 4(3) of the 1939 Act or section 15 of the 1980 Act,
unaffected by the subsequent expiration of the 12-year period while the
proceedings are pending. If that be so, it could not, in my judgment, be a
correct reading of section 16 of the 1939 Act to hold that the title of the
plaintiff to the land is extinguished while an action for the recovery of the
land, launched in due time, is still pending. On Lord Radcliffe’s approach the
title can then be extinguished only if or in so far as it cannot be established
and vindicated by the action which has been brought in due time.
So again, if
an action to recover land is brought within the 12 years and judgment for
possession is given in that action, albeit after the expiration of the 12
years, it would be idle to suppose that the judgment for possession could,
because of the expiration of the 12 years, never be enforced. The judgment must
be enforceable if the action was started in due time. So equally, if the action
is started in due time, and judgment for possession is granted, eg shortly
before the expiration of 12 years from the date on which the right of action
accrued, it could not be suggested that the judgment would cease to be
enforceable on the expiration of 12 years from the date on which the original
right of action accrued.
The true
position, in my judgment, under the 1939 Act was that after a judgment for
possession had been obtained in an action for the recovery of land begun in due
time, the successful plaintiff had 12 years from the date of the judgment to
enforce the judgment before any question of limitation could arise. This result
may follow from the view expressed by Scott LJ in Lougher v Donovan
[1948] 2 All ER 11 that an application to issue or extend a warrant for
possession under a judgment for possession is itself an ‘action brought upon a
judgment’ for which there was a prescribed limitation period of 12 years under
section 2(4) of the 1939 Act. Alternatively, it may be based on the view
expressed by the editors of the County Court Practice in their notes to
the present Order 26, rule 5 that, although the right to sue on a judgment has
always been regarded as a matter quite distinct from the right to issue
execution under it which is essentially a matter of procedure (W T Lamb
& Sons v Rider [1948] 2 KB 331), nevertheless leave to issue a
warrant of execution will not be granted, nor will a warrant issued be renewed,
at a time when the limitation period appropriate to an action on the judgment
has expired. It is unnecessary to explore in any detail the mechanics for
enforcing a judgment for possession. The order of Judge Watkin Powell of
September 19 1974 giving leave to enforce the order for possession of December
11 1962 was made within 12 years after the making of the order for possession
and accordingly was an order which Judge Watkin Powell had jurisdiction to
make.
It follows
that enforcement of the judgment for possession of December 11 1962 was still
open to the landlords at October 31 1974, and their title to the farmhouse and
garden had not been extinguished. I would accordingly reject the contention
that Mrs Buckler had acquired a title by adverse possession before October 31
1974.
It remains to
consider the effect on Mrs Buckler’s possession of the letters at that date.
These unilaterally granted her a licence to occupy the farmhouse and garden
rent-free for the rest of her life.
Section 10(2)
of the 1939 Act provides that:
Where a right
of action to recover land has accrued and thereafter, before the right is
barred, the land ceases to be in adverse possession, the right of action shall
no longer be deemed to have accrued and no fresh right of action shall be
deemed to accrue unless and until the land is again taken into adverse
possession.
It is said for
BP Properties Ltd that under the letters Mrs Buckler became a licensee for life
of the farmhouse and garden. Therefore she was no longer in adverse possession
and time ceased to run in her favour. This is supported by the statement of
Slade J in Powell v McFarlane at p 469 that time can never run in
favour of a person who occupies or uses land by licence of the owner with the
paper title and whose licence has not been duly determined. In so far as it is
urged for the other side that Mrs Buckler’s possession continued to be adverse
before and after the receipt of the letters, without any change, and was
referable to her own expressed belief that she was the owner of the land
because of her grandfather’s title, it is said for BP Properties Ltd that there
is a rule that ‘possession is never adverse if it can be referred to a lawful
title’, and reference is made to the judgment of Harman LJ in Hughes v Griffin
[1969] 1 All ER 460 at p 464.
The claim that
a unilateral licence can stop time running is a new one. It may be of some general
importance in that it would enable a person who is not prepared to incur the
obloquy of bringing proceedings for possession, or of enforcing a possession
order, to keep his title alive for very many years until it suits him to evict.
It might be thought that for title to be kept alive in this way was contrary to
the policy of the statute as exemplified by section 13 of the 1939 Act, which
reproduced earlier statutory provision to the same effect and prevented any
right of action to recover land being preserved by formal entry or continual
claim.
So far as the
facts are concerned, it would in my judgment be artificial to say that Mrs
Buckler ‘accepted’ the terms set out in the two letters; BP Properties Ltd
neither sought nor waited for her acceptance. It would be equally artificial to
say that there was any consideration in law for those terms.
It may be that
the result would have been different if Mrs Buckler had, as soon as she learned
of the letters, plainly told BP Properties Ltd that she did not accept the
letters, and maintained her claims to be already the owner of the property; she
did not, however, do that. She accepted her solicitors’ advice that as the
warrant for possession had been withdrawn, she should do nothing while the
12-year period from the date of the possession order of December 11 1962
expired. In essence she was not asserting during the time from the receipt of
the letters until after December 11 1974 — or indeed thereafter — any claim to
ownership of the farmhouse and garden, or any intention to exclude the owner of
the paper title.
Whether BP
Properties Ltd could or could not in law, in the absence of consideration, have
sought to determine in her lifetime the licence granted to Mrs Buckler by the
two letters, they did not in fact seek to do so. Had they sought to do so, they
would in the absence of any repudiation of the letters by Mrs Buckler have had
to give Mrs Buckler a reasonable time to quit as with any licensee.
The nature of
Mrs Buckler’s possession after receipt of the letters cannot be decided just by
looking at what was locked up in her own mind. It must depend even more, on
this aspect of the case, on the position as seen from the standpoint of the
person with the paper title. What could that person have done? The rule that possession is
in possession did not know of the lawful title; the lawful title would still
preclude the person with the paper title from evicting the person in
possession. So far as Mrs Buckler was concerned, even though she did not
‘accept’ the terms of the letters, BP Properties Ltd would, in the absence of
any repudiation by her of the two letters, have been bound to treat her as in
possession as licensee on the terms of the letters. They could not have evicted
her (if they could have done so at all) without determining the licence.
I can see no
escape therefore from the conclusion that, whether she liked it or not, from
the time of her receipt of the letters, Mrs Buckler was in possession of the
farmhouse and garden by the licence of BP Properties Ltd, and her possession
was no longer adverse within the meaning of section 10 of the 1939 Act.
Accordingly I
would dismiss this appeal.
MUSTILL LJ and
SIR EDWARD EVELEIGH agreed and did not add anything.
The appeal
was dismissed and possession ordered in six weeks. Leave to appeal to the House
of Lords was refused but a stay pending a possible application to the House was
granted on terms. An order for costs against the appellant was not to be
enforced without leave and legal aid taxation of appellant’s costs was ordered.
