Defendants purchasing farm – Claimants owning adjoining land – Claimants granting defendants licence to farm adjoining land – Claimants not replying to defendants’ request to renew licence – Defendants continuing to farm claimants’ land – Whether defendants acquiring title by adverse possession – Claimants’ application for possession refused
Between 1975 and 1977 the first claimant acquired Henwick Manor, Thatcham, Newbury, Berkshire, together with a substantial amount of surrounding land. In February 1977 the first claimant sold the farmhouse and 165 acres of land (the farm) to a purchaser, H. The first claimant retained the remaining 57 acres (the disputed land) because it was considered to have development potential. The first claimant granted H successive annual licences to farm the disputed land.
In 1982 G and his wife acquired the farm with the purpose of providing a farm for their son, M. The first claimant granted G a written grazing licence in respect of the disputed land until 31 December 1983, followed by a licence to take a cut of hay from the land during the summer of 1984. In December 1984 G’s agent requested a further licence for 1985. However, the request went unanswered and no further communication took place between G, the agent or the claimants until 1997. Meanwhile, M continued to farm the disputed land.
In June 1997 M registered a caution against the claimants’ title to the disputed land on the basis that he had obtained title to the land by adverse possession. In August 1997 the claimants wrote to the Land Registry making “an application to warn off the caution”. In April 1998 the claimants issued proceedings seeking cancellation of the caution and on 20 January 1999 they issued further proceedings seeking possession of the disputed land. The issue was whether G and M had enjoyed adverse possession of the disputed land for 12 years between 1 January 1984 and 20 January 1999.
Held: The claimants’ applications were dismissed.
1. The mere fact that a squatter orally communicated his preparedness or wish to take a licence of the land in question from the owner did not, of itself, prevent time running in the squatter’s favour. Accordingly, the request for a licence in 1985 did not prevent time from running for the purposes of section 15(1) of the Limitation Act 1980. However, the fact that a squatter asked the owner whether he could take a licence to occupy the land might be a factor that, at least in some circumstances, could be invoked by the owner to assist his contention that the squatter did not have the requisite intention to possess at the time the request was made.
2. The relevant date from which time ran in G and M’s favour, for the purposes of section 15(1), was the date on which the licence to take a cut of hay in the summer of 1984 expired, namely 31 August 1984. It could be concluded that they had enjoyed factual possession from at least that date, and there was clear evidence that they had had the necessary intention to possess the disputed land and that their possession had been adverse. That time had only stopped running when the claimants issued proceedings for possession on 20 January 1999. It had not stopped when the claimants applied to warn off the caution or when they issued proceedings seeking cancellation of the caution, since neither had constituted an “action” within section 38 of the Act. Accordingly, the claimants’ title to the disputed land had been extinguished by virtue of section 17 of the Act and, in the light of section 15 of the Act, the claimants’ application for possession of the disputed land had to fail: Powell v McFarlane (1977) 38 P&CR 452 and Buckinghamshire Country Council v Moran [1989] 2 All ER 225 applied.
Jonathan Gaunt QC and Jonathan Small (instructed by Darbys Mallam Lewis, of Oxford) appeared for the claimants; Kim Lewison QC and Martin Dray (instructed by Burges Salmon, of Bristol) appeared for the defendants.
Thomas Elliott, barrister
