Plaintiff and defendant claiming title to land at rear of properties – Defendant having paper title to land – Plaintiff claiming declaration – Whether plaintiff showing intention to possess – Judge finding for plaintiff – Defendant’s appeal dismissed
In November 1961 the plaintiff’s predecessor in title, C, who owned 83 and 85 Thornton Road and 60 Whitehall Road, Thornton Heath, Surrey, applied for and received planning permission to change the use of the premises to that of a garage showroom. From 1963 to 1987 C traded with a partner in second-hand cars. In 1968 the first and second defendants arrived at no 83 as tenants. At the rear of no 83 there was a lean-to conservatory running across the width of the property with a yard immediately behind. It was clear that the land to the rear of the buildings and conservatory, the disputed land, was excluded from the lease and became part of the yard used for C’s business. In 1969 C placed a concrete screed covering the entire area and blocked off an alleyway running parallel to Thornton Road. On September 7 1981 the defendants purchased the freehold title of no 83 including the disputed land.
In March 1987 the plaintiff purchased no 85 and the yard to the rear of nos 83 and 85. In February 1993 the defendants decided to sell. In November 1993 discussions took place with the plaintiff as to the ownership of the area immediately behind no 83, which led to proceedings being issued by the plaintiff claiming a declaration that he was entitled to the disputed land on the basis of adverse possession. The plaintiff claimed that C had always parked his car against the conservatory and that he and C were unaware of the use the defendants made of the land, except that they placed a dustbin there. The defendants contended that between 1970 and 1981 they had used the land as if it were their own. The first defendant died shortly before the case was heard. The judge found in favour of the plaintiff and the second defendant appealed on the ground, inter alia, that the judge, having found that the defendants had carried out certain acts consistent with possessing the land, had been wrong to conclude that they were not in occupation for the relevant period because they were unaware that they actually held the paper title.
Held The appeal was dismissed.
The critical question for the purposes of section 15(1) and para 8.1 of Schedule I to the Limitation Act 1980 was whether the plaintiff had acquired adverse possession. First, the plaintiff had to prove that he and C had been in exclusive possession for 12 years from September 7 1981 and second, that the plaintiff had the requisite intention to possess. It was clear that the plaintiff had made extensive use of the land to park his cars and had not differentiated between the disputed land and the undisputed land. The defendants had not shown a sufficient degree of exclusive physical control: see Powell v McFarlane (1977) 38 P&CR 452 per Slade J at p470. The judge could not have found otherwise on the facts than that the plaintiff had shown an animus possidendi and, although there had been no express finding to that effect, actions spoke louder than words. There was no more assertive expression of exclusive possession than that of parking cars close to someone’s conservatory.
Christopher Stoner (instructed by Streeter Marshall, of Croydon) appeared for the appellant; Lawrence Caun (instructed by Dzimitrowicz York, of Croydon) appeared for the respondent.
