Defendant breaking into and occupying property for more than 12 years – Claimant council seeking possession – Defendant claiming right of possession and title to property by adverse possession – Judge finding defendant in physical possession for 12 years but lacking necessary intention to possess – Whether defendant having necessary intention to possess – Appeal allowed
The claimant council were the freehold owners of flat 6 Granville House, Rushcroft Road, London SW2, and had been since 1975. There had been no leasehold interest in the flat since 1983. In February 1988 the defendant broke the padlock on the front door of the flat and installed his own Yale lock. He moved into and lived in the flat for the next 12 years, gradually improving it and making it more habitable.
In April 2001 the council issued proceedings seeking possession of the property. The defendant claimed that: (i) he had been in sole possession of the flat since February 1988; (ii) the council were statute-barred from gaining possession by reason of section 15(1) of the Limitation Act 1980; and (iii) the council held the flat on trust for him under section 75(1) of the Land Registration Act 1925. The judge held that although the defendant had established physical possession over the past 12 years, he had not shown the necessary intention to possess the flat during that period. This was because the defendant had not regarded the premises as anything other than a temporary home, since he had not expected to be there longer than six months to a year. The judge held that the defendant had not, therefore, been in adverse possession and that the claim was not statute-barred. The defendant appealed, contending that he had had the relevant intention to possess. He submitted that: (i) he had dispossessed the council as owners by breaking and replacing the padlock; and (ii) the dispossession was manifest to the council or would have been had they been present at the property.
Held: The appeal was allowed.
1. The defendant’s intentions were to be judged in respect of his actions. Had the council inspected the premises, they would have found the old padlock removed, a new Yale lock installed, and the defendant in residence. They could not have concluded anything other than that the defendant was intending to exclude everyone, including the council, from the flat. This amounted to a final unequivocal demonstration of the defendant’s intention to possess. Although he expected to be in the flat for a short period, this was based upon the expectation that he would be evicted, and, at any rate, he intended to occupy the premises until evicted.
2. The defendant’s claim that he would have negotiated with the council had they contacted him, and that he would have agreed to pay rent had the council allowed him to stay, did not negate the requisite intention to possess. Although there might be cases in which an expression of such willingness could tend to negate an intention to possess property, an admission that if the owner had come along he would either have taken a lease or got off the land, did not indicate an absence of the necessary intention to constitute adverse possession. Accordingly, the judge should have held that the defendant’s evidence contained nothing to suggest that he did not have the requisite intention: Buckinghamshire County Council v Moran [1990] Ch 623 and Powell v McFarlane (1979) 38 P&CR 452, applied.
Andrew Arden QC and Andrew Dymond (instructed by Steele & Co) appeared for the claimants; Keith Rowley QC and Nicole Sandells (instructed by Thomas & Co) appeared for the defendant.
Thomas Elliott, barrister
