A person seeking to persuade a court that they have been in adverse possession of land must show that they have had exclusive possession of that land, that they had the relevant intention to possess the land, and that their possession was adverse to the paper owner. Possession with the permission of the owner does not constitute adverse possession.
It is a question of fact whether or not permission has been given and, because paragraph 8(4) of Schedule 1 of the Limitation Act 1980 recognises the possibility that a landowner may grant an occupier implied permission to use land, such permission may be either express or implied. This enables the court to uphold the paper title in a wider variety of cases, but can cause difficulties in practice because it is not always easy to know what constitutes implied permission. However, there needs to be some overt act by the landowner, or some demonstrable circumstance from which consent can be implied. It is irrelevant whether the occupier was aware of the act or circumstance, so long as a reasonable person would have appreciated that the occupier had the landowner’s permission to use the land.
Smart v Lambeth London Borough Council [2013] EWCA Civ 1375; [2013] PLSCS 270 concerned council properties that became squats. Following negotiations to regularise the position, the council granted a housing association a licence to establish a scheme to enable the occupiers to remain in the houses for the time being. The housing association achieved this by entering into an agreement with a housing co-operative, formed by the squatters, who were each then asked to enter into occupation agreements with the co-operative.
In due course, one of the occupiers moved on and handed the keys to her house to the claimant, who moved in without signing an occupancy agreement, as was required by the scheme. The claimant became actively involved in the day-to-day management of the housing co-operative, but subsequently claimed to have been in adverse possession for long enough to have barred the paper title.
A classic case where permission is often implied is where parties are negotiating for the grant of an interest in the land. The parties agreed that the occupiers had been in occupation of the properties with the council’s permission during the negotiations to establish the scheme and the court decided that this state of affairs had continued until the previous occupier moved out. The claimant had then put paid to any possible claim by acknowledging the council’s title less than 12 years later, which would have reset the adverse possession clock at zero.
However, the Court of Appeal held that it would be wrong to assume that the council’s consent to the occupation of the properties had to be expressed through the mechanisms laid down in the chain of agreements between the council, the housing association, the co-operative and its members. The council had agreed that the properties could be occupied by current and future members of the co–operative, as the claimant knew, and the court was satisfied that there were abundant circumstances in this case from which the claimant, or indeed any reasonable person, would have been able to conclude that he was in occupation pursuant to the scheme.
Allyson Colby is a property law consultant
